Jenni Whelan
UNSW Law School
Human Rights Clinic
Presentation outline
1. Who are refugees and asylum seekers?
2. What is the global picture of refugees and
asylum seekers and where does Australia
fit within that?
3. What obligations has Australia
undertaken regarding the treatment of
asylum seekers and refugees?
4. What are some key issues and challenges
faced by refugees and asylum seekers
arising from current Australian law and
policy?
Who are refugees and asylum seekers?
The 1951 Refugee Convention 
defines a refugee as:
“Any person who owing to a well
founded fear of being persecuted
for reasons of race, religion,
nationality, membership of a
particular social group or
political opinion, is outside the
country of his/her nationality
and is unable, or owing to such
fear, is unwilling to avail himself
or herself of the protection of
that country.”
An asylum seeker is a person
who has sought protection
as a refugee, but whose
claim for refugee status has
not yet been assessed.
What is the global picture of refugees and asylum
seekers
 UNHCR: forcibly displaced people worldwide =
51.2 million.
 Of these 16.7 million are refugees.
 In 2013 32,200 persons per day left their homes seeking
protection elsewhere within the borders of their
countries or in other countries.
Where does Australia fit within the global picture?
 Since 2008 Australia has accepted between 13,507 and
20,019 of the 16 million plus refugees per year.
 Between 2007-2008, Australia received an average of
2,831 asylum seekers by boat each year.
 In 2012, Australia received 17,202 asylum seekers by
boat, its highest annual number. This represented 1.47
per cent of the world’s asylum seekers.
What obligations has Australia undertaken regarding
the treatment of asylum seekers and refugees?
 Universal Declaration of  Convention against
Human rights
 Refugee Convention
 International Covenant on
Civil and Political Rights 
 International Covenant on

Economic, Social and
Cultural Rights
Torture and Other Cruel,
Inhuman or Degrading
Treatment or Punishment
Convention on the Rights
of the Child
Convention for the Rights
of Persons with
Disabilities
What obligations has Australia undertaken regarding
the treatment of asylum seekers and refugees…
 Asylum seekers should not be penalised for arriving in a
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country without authorisation.
People should not be returned to a country where their life
or freedom would be threatened (‘refoulement’).
Everyone has the right not to be subjected to arbitrary
detention.
Anyone who is detained has the right to challenge the
legality of their detention in court.
All persons who are detained should be treated with
humanity and respect for their inherent dignity.
No one should be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
Everyone is entitled to respect for their human rights
without discrimination.
What obligations has Australia undertaken regarding
the treatment of asylum seekers and refugees…
 Everyone has the right to work, and to an adequate
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standard of living, including food, clothing and housing.
Everyone is entitled to enjoy the highest attainable
standard of mental and physical health.
Everyone has the right to have their family protected from
arbitrary or unlawful interference.
Children should only be detained as a measure of last
resort, and for the shortest appropriate period of time.
In all actions concerning children, the best interests of the
child should be a primary consideration (and in the case of
their legal guardian, the primary consideration).
Children who are unaccompanied and/or seeking asylum
have a right to special protection and assistance.
Issues arising for Refugees and Asylum seekers from
current Australian law and policy
Persons granted refugee status and living on the
Australian mainland but who are detained indefinitely
because of an adverse security assessment.
2. Asylum seekers who arrived by boat before the
reintroduction of offshore processing who are entitled to
have their claim for asylum processed in Australia.
1.
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Mandatory detention
The ‘no advantage’ policy
3. Asylum seeker children and families on Christmas Island
awaiting transfer for offshore processing or who have
been sent to Nauru.
1.
Documented human rights breaches
Concluding questions
 Are we content that our maritime borders are now
effectively closed to asylum seekers given the global
displacement of people and the 16.7million plus refugees
in the world?
 Why must we continue to punish those asylum seekers
that have already arrived who are awaiting the outcome
of their claims for protection (when there is no deterrent
effect because asylum seekers who arrive since May 2013
are sent offshore?)
 How much long term damage are we willing to inflict on
children and adults who have sought our protection to
keep our borders sovereign and when does the human
cost of stopping the boats become too expensive?