The linked to article is an interview with Dr Jane McAdam.
Dr McAdam talks about Australia's obligations as concerns the relocating of asylum seekers offshore whilst they await processing and assessment as to their eligibility of being classified as Refugees.
Dr McAdam states
Australia has obligations primarily not to return anybody to a place where they would face persecution or other forms of serious harm such as torture or cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life.
She goes on further to say
This requires, at a bare minimum, the assessment of individuals’ international protection needs.
In other words we are required by our being a signatory to the
1951 UNHRC Refugee Convention to perform due diligence on a case by case basis.
And then, quite rightly, she expands on that observation
Australia is therefore at risk of breaching its obligations precisely because it does not systematically examine on a case by case basis whether people have a risk of such treatment if they are removed from Australia. This needs to be assessed not only with respect to their removal to their home country, but also to Malaysia (or any other country to which their removal might be proposed).
What Dr McAdam states is quite true but I think our "obligations" need a little more understanding as some may think our obligations have a legal basis.
We have a moral and an ethical obligation to treat Refugees as per the
1951 Refugee Convention. This obligation arises out of our agreement to adhere to the principles for the treatment of Refugees as set out in that Convention. It holds no force in International or Domestic Law'
What is a refugee as defined by the Convention?
A PERSON WHO IS OUTSIDE HIS OR HER COUNTRY OF NATIONALITY OR HABITUAL RESIDENCE; HAS A WELL-FOUNDED FEAR OF PERSECUTION BECAUSE OF HIS OR HER RACE, RELIGION, NATIONALITY, MEMBERSHIP OF A PARTICULAR SOCIAL GROUP OR POLITICAL OPINION; AND IS UNABLE OR UNWILLING TO AVAIL HIMSELF OR HERSELF OF THE PROTECTION OF THAT COUNTRY, OR TO RETURN THERE, FOR FEAR OF PERSECUTION.
Thus it is incumbent upon a receiving country to asses whether a person attempting to gain entry for purposes of remaining there fits the definition of "refugee" as per the convention. This is the process the government undertakes after interception. The reason for this is that there are people who are "economic refugees", those seeking a better standard of living then achievable in their native country. These people do not meet the criteria of the Convention and thus fall outside our obligations under the Convention.
Where the person's claim is assessed he is either found to have fitted the definition or not in which case the receiving country has the right to return that person to whence he originated from.
As an aside, even if the person satisfies the criteria of the definition, the convention
.......does not provide automatic protection for all time. Many refugees have integrated permanently in their country of asylum, but some stop being a refugee when the basis for their original asylum claim ceases to exist. Voluntary repatriation of refugees to their home country is UNHCR’s ‘preferred’ solution – and indeed is the commonest outcome – but only when conditions make it possible for them to return home safely. (UNHRC)
Therefore, the government has the right to grant temporary refugee status that can be revoked once the situation in the refugees home country changes. In practice this does not happen.
So the Australian Government has the right to process those seeking refugee status anywhere that it wishes as long as it does so with "Non Refoulement". This means that no country may deport or expel a person to a country where that person faces persecution, or risk of serious human rights violations.Now, the question is whether Malaysia is likely to persecute or violate the human rights of the Asylum seekers during their period of detention there on our behalf.
That is a question for the Government to answer. Whilst Malaysia is not a signatory to the Convention that does not preclude it per se. It would have to be proved by sending claimants there would be an act of "Refoulment". Dr McAdam's is right that each case must be looked upon individually, for example, you could not send a Muslim to a country that only serves pork even if that person was otherwise treated as a King.
I am sure the Government is more than aware of this requirement, notwithstanding that, we as a country treat Human Rights very seriously and I doubt any Australian would act so cavalier to do other than what is in the best interest of the claimants and Australia.
This whole debate is based on Australia's rights to deter non genuine "refugees". We should do all we can to achieve this objective with due respect to the commitments we have undertaken and to a genuine regard for the human rights of the claimants.
Explainer: The facts about the Malaysian solution and Australia's international obligations
