Refugees deserve second chances too

20 June 2013

The Coalition proposes to cancel the visas of foreigners who commit crimes carrying a penalty of at least one year imprisonment. The changes would apply even to refugees and asylum seekers, and the Coalition claims they would be consistent with Australia's international obligations.

The Refugee Convention balances the humanitarian need to protect refugees against a country's right to protect its community. This is hardly surprising in a treaty adopted in 1951 after a world war involving the most savage crimes and insecurity imaginable.

For those already accepted as refugees by Australia, and who commit crimes here or endanger security, there are special rules in the Convention. Article 33(2) allows a refugee to be returned to persecution if there are "reasonable grounds" for regarding the person as "a danger to the security of the country", or where the person "constitutes a danger to the community" after "having been convicted by a final judgment of a particularly serious crime".

These are high thresholds. They do not allow the deportation of a refugee who commits any crime or poses any security risk. According to the UN High Commission for Refugees, they are limited to "grave" crimes or serious national security threats, and must be applied with the "greatest caution" because of the harsh consequences of return to persecution.

In international practice, a "particularly serious crime" means murder, rape, child abuse, wounding, arson, drug trafficking and armed robbery. The person must also be a future danger to the community. If the Coalition's proposal to expel refugees is limited to such offences, it may be consistent with the Convention, depending on individual circumstances.

However, there are many other crimes with a penalty of a year or more in prison which are not at all this serious, from theft to fraud. The expulsion of refugees for lesser crimes would violate the Convention.

The expulsion threshold is high because the very idea of refugee status supposes that Australia has permanently accepted a person into the life of the community, warts and all. Refugees are not superhuman. They cannot be held to standards of perfect behaviour which we do not expect of other Australians. Their status among us cannot be forever conditional, so that if they ever trip up - for the rest of their lives - they must fear return to persecution.

For those seeking asylum, Article 1F of the Convention allows Australia to exclude from refugee status anyone who has committed an international crime (such as war crimes, crimes against humanity, genocide, or torture), a serious non-political crime (such as murder, rape or other violence), or acts contrary to the United Nations (such as terrorism).

There must be "serious reasons for considering" that a person has committed such acts, but a person can be excluded even if they have not been convicted by a court. Australian law already requires people to be excluded on these grounds, and few cases arise each year.

The Convention regards those who commit such acts as undeserving of refugee protection. But it does not allow countries to exclude people for any crime. The commission of minor offences does not justify return to persecution. People deserve second chances, particularly where they have lost everything and they have nowhere else to go.

In addition, under human rights treaties, Australia can never send a person back to torture or inhuman or degrading treatment. Persecution is often inhuman or degrading, so that even people denied refugee status must still be protected under Australia's "complementary protection" laws. Human rights law is more modern than refugee law, since it recognises that even war criminals or terrorists must not be tortured.

The Coalition has also suggested that those it wishes to expel will lose their right to appeal. This is inconsistent with international law. A person has a right to a fair hearing before a competent tribunal. It need not be a court, but it must be independent. A person is also entitled to see and challenge the evidence against them.

Finally, the Coalition has suggested that those it wishes to expel may be indefinitely held in immigration detention. Under current Australian law, that is permitted. Both major parties support indefinite detention, and we have exported it Nauru and Papua New Guinea.

Yet, indefinite detention is an unambiguous violation of international law, as the United Nations has often advised Australia. For whatever cultural reasons, Australia is an arrogant outlaw when it comes to valuing the precious human liberty of those other than ourselves.

The Refugee Convention is an imperfect instrument. But it is the only global deal we have on the protection of refugees. Australia should do more, not less, than it requires. We should not constantly erode it, leaving the wretched of the earth more vulnerable, appealing to the lesser nature of our fellow citizens - we who rank among the world's richest and most content.

Ben Saul is Professor of International Law at Sydney Law School.

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