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Are you an oxymoron? The truth about 'illegal' asylum seekers

Are you an oxymoron? The truth about 'illegal' asylum seekers
by Tim Matchett

If I hear the term 'illegal asylum seekers' once more, I think I'm going to scream. Terminology might seem pedantic to you, but when dealing with such a contentious issue, it is vital.

The term 'illegal asylum seekers' is an oxymoron. According to the Migration Act, there is only a distinction between 'lawful non-citizens'(with visa) and 'unlawful non-citizens'(without visa). Unlawful doesn't mean illegal, as it is not a crime to arrive in Australia without a visa, whether by boat, air, parachute, spaceship, or catapult.

According to Kerry Murphy, lawyer and academic specialising in migration law, the possession of a valid visa is irrelevant to a person's claim of asylum. "Whether someone has a visa or not is not relevant for refugee status," Mr Murphy said. "At most, having a valid passport and visa may give rise to adverse inferences about whether someone has a well founded fear of persecution."

To use the term 'illegal asylum seekers' is not only wrong but also extremely harmful. Kate Gauthier, National Coordinator of A Just Australia, explains why. "The term 'illegal asylum seekers' implies that these people are criminals and, therefore, not who we want here in Australia," Ms Gauthier said. "The term ties in to the broader myth of there being good refugees and bad refugees, and that the latter should be punished for jumping the queue, even though no such queue exists."

International law rejects the illegality of seeking asylum. The United Nations Refugee Convention, to which Australia is a signatory, is clear and explicit about the status of people claiming asylum in another country. It states, "Refugee status exists prior to, and independent of, the recognition of this status by member countries." Because of this, seeking asylum cannot be illegal.

As a signatory to this Convention, Australia is obliged to recognise all asylum seekers as refugees until such time as it can decide otherwise. However, even if Australia denies refugee status to an asylum seeker, he/she is still not 'illegal', as Australia can only confirm refugee status, not establish it. The fear of persecution, defined by the Convention, is not confirmed or denied during the interview, but instead is solely "as perceived by the claimant and as expressed by the claimant."

The use of correct terminology is extremely important. When asked why it matters how we refer to asylum seekers, Ms Gauthier replied, "Until a court establishes a crime has been committed, you can't pass judgement over any person's legality." Ms Gauthier was very clear on the necessity for proper reporting of asylum seekers. "It's about affording due process to everyone, especially considering our obligations to asylum seekers under international and domestic law."

The Australian Human Rights Commission estimates that 82-91% of all asylum seekers arriving in Australia are confirmed as refugees. So why the use of the term 'illegal' to describe them? Debate on asylum seekers is encouraged, but let's keep the debate informed and accurate. Isn't it the least we can do?


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Because the refugee convention does entitle absolutely anyone to cross any border without being punished and that is enshrined in Australian law and has been internationally recognised law since 1954.

As for being in the people's own country, the definition of the refugee is that they must be OUTSIDE their country, have a well founded fear of persecution and be unable or unwilling to go home.

See the Federal Court of Australia's decision in Al Masri  v Minister for Immigration & Multicultural & Indigenous Affairs, especially paragraphs 60 - 63.

Refugees could have their uses too

I'm not  saying refugees should be punished for being refugees. And they are not in Australia. They are detained so that their refugee status can be verified, and they can then be further processed.

But I mean my personal opinion is that Australia doesn't accept anyone unless they are useful to the country. That is they can work and be able to socially function in a civilized western society. Hence we need to accept most people from countries like USA, Canada, European countries, Japan, etc. What use to Australia, for example, are the thousands of negroes from Sudan that have recently come here as refugees? Alot of them can't speak English, are illeterate, and simply not able to function in our society. I guess we could use them as cheap labour, but that's about it. 

Right to safety

Being illiterate doesn't stop people from having a right to safety and we don't get to only pick those that suit us, or we shouldn't.

However, that is precisely what we do.

And putrid things like this.  I was in court for the hearings on this case - those who kidnapped the child and deported her without documents were promoted, the one in charge - Bill Farmer - only resigned after the Rau and Alvarez cases exposed his incompetence, but he was promoted anyway and is now peddling the same old likes in Indonesia.

The second in charge at the time of this case was Andrew Metcalfe and he was part of the lie, the kidnapping and the cover up.

Pointless semantics and border security

Tim Matchett, it's "great" how you want to use pointless semantics to prove an unrelated political argument. I mean you keep on saying "illegal" vs "unlawful", but I'm sure if you look at most dictionaries, you will realise that illegal and unlawful are interchangeable words, i.e. synonyms.

Then you go on to say that having a visa or a valid passport is not relevant for refugee status. Of course it's not, but whether you do or not have them doesn't mean that the host country, in this case Australia, is under obligation to grant anyone a refugee status.

You keep on implying that the general consensus in this country is that refugees are being persecuted in this country because they are refugees seeking asylum. This is completely ridiculous. There are plenty of people who come to Australia from around the world on refugee visas. They have been granted those visas while still in their country of origin by the Australian embassy or consulate, as the Australian Department of Immigration has granted them that status. However the people that I believe you are talking about in this article come to Australia (whether it is by boat, plane, or whatever else) without any form of identification or a legal right to be here. And I think it states quite clearly, not just in Australian, but in legislation of most other countries, that crossing the border without a legal right to do so is obviously illegal or if you prefer "unlawful".

Fiona: Welcome to Webdiary, Alexey.

That is rubbish

Refugee visas are not granted by Australia in other countries because they can't grant them refugee visas inside their own countries.  If they are inside their own countries they are not refugees.

It is not illegal to arrive in Australia without a visa and ask for refugee protection and the only place people can ask Australia for refugee protection is here.

Those people we import are migrants who have been in other countries for as long as 25 years and have not been in danger for most of them and have not had their protection withdrawn by the UNHCR or the host country.

Some ideas definitely need to be recycled

Marilyn Shepherd, actually they can grant them refugees status outside Australia. It can occur inside their own countries if they go through an Australian embassy in that country, as an Australian embassy in that country would represent Australia. The physical land where Australian embassy would be situated in another country is actually Australian territory. So they can actually seek refugee status there. Quite strange that you don't know that.

And you say it's not illegal to arrive in Australia without a visa. As far as I know it is illegal to cross any country's border whether by land, sea or air. I don't know what strange medieval ideas you have about administrative country borders in the 21st century. If you cross an administrative country border, any country in the world, you would be breaking the law. Even if someone who is truly a refugee crosses a border without having an appropriate visa, as far as the country they're going into is concerned they are just another person illegally crossing the border. What do you propose we open the borders and let everyone in?

The other thing you say about those people not having protection withdrawn by the UNHCR or their host country, doesn't mean they automatically will have refugee status accepted by the Australian government. That is why they are being detained until it can be further confirmed whether to grant them refugee status or not.

So I'm really glad that you don't have any input into this or for that fact any country's politics. Your ideas about migration law are evidently unrealistic, almost utopian, and would lead to the detriment of the country.

Unlawful doesn't mean illegal?

"Unlawful doesn't mean illegal, as it is not a crime to arrive in Australia without a visa, whether by boat, air, parachute, spaceship, or catapult."

Unlawful doesn't mean illegal?

What does it mean?


Eliot, it just means you don't have a valid visa. The Migration Act makes it clear that it is not a crime to be without a visa in australia. 

It simply says that if you don't have a visa you can be detained (s189) and then removed if there is no current application to remain (s198).

So a person here without a visa can only become 'illegal' once they break a law here. But an asylum seeker cannot be called illegal for arriving here without a visa because they haven't broken the law. In fact Australia, having ratified the Refugee Convention, is supposed to welcome them.

Words are powerful tools

It is journalists who choose the words that describe these people.

Words such as queue jumpers, illegal immigrants, and asylum seekers.

Journalists have a responsible role to play when they try to inform us. They play an enormous part in the thought process we all go through when we try to come to grips with these difficult issues.

I think a lot of journalists have used the power of words to change public opinion. It is no wonder that the traditional journalist is despised and there is a flowering of amateur journalism on the internet.

Let's hope that the trainee journalists are more careful with their use of language.

A more politically savvy approach is needed here

I don't disagree with any of the comments made on this thread or any other about the ethics or legal issues raised. What concerns me, however, is the failure to grasp how readily the racist middle classes and sections of the racist ruling class or merely the cynical elements of the ruling class were able to summon racist working class and sub-proletarians to destabilise Labour and support Howard on the issue of "illegals" in whatever form.

In other words, I believe that it is not enough for intelligent people to merely talk about the law and complain about the ineptitude of Rudd and co's policies without also addressing the matter of how Rudd and co are required to manoeuvre defensively in a political environment thoroughly saturated with irrational racism.

The issue therefore is: how to advance decent and humane policies in an environment in which we know that Hansonite sentiments can be rapidly whipped into a frenzy. Those racist elements are no minority. They voted for Howard on the very issue of "we will decide who comes here" etc and kept him in office for a long time.

So what about it?

A much more debatable issue

Anthony, I think you're talking about a much more debatable issue. I'm talking about the damage of incorrect terminology and you're talking about the majority of Australians having racist sentiments. It's too much of an assumption to talk about "racist middle classes" and the "racist ruling class". While I do think there are genuine questions about racism and xenophobia in regards to Australians' thoughts on asylum seekers, I don't think you can generalise as much as you have done.

You also say you "believe that it is not enough for intelligent people to merely talk about the law and complain about the ineptitude of Rudd and co's policies without also addressing the matter of how Rudd and co are required to manoeuvre defensively in a political environment thoroughly saturated with irrational racism." That sounds like you're an apologist for Rudd. The fact is Rudd has not made any attempt to dispell the myths about asylum seekers. Instead, he's only tried to impress people by taking a tough stance on people smugglers.

The issue of terminology isn't people talking about the law and that's it. My point is that if the Australian public were simply better informed about asylum seekers, their opinions MIGHT change. And that's where Rudd could help. But so far he's been as unhelpful as Turnbull.

Spanish Flea

Well, boyo...

Anthony Nolan would have adored some of the stuff going down on ABC tonight firstly the Media Watch special; back to the good ol' days of Alan Jones, ACA , Albrechtsen and the like, then Q and A.

Here Tony Jones, hamstrung by an ABC internal Star Chamber type inquiry into his interviewing "balance", lost control trying to (self) censor his way through fiery debates involving asylum seekers, torture and the culmination; a spirited debate over Palestine and Israel, while that idiot Sheridan spent his hour exclusively trying to pour oil on trouble waters as to these matters, as Sen Arbib showed his true Falangist antecedents during the Palestine/ Israel component.

Here's a new Arne Rinnan


See what he says? They have nothing but desperation and the clothes on their backs. Just imagine how much they are tortured to resort to this before people are judged.

Could explain some of the change of language in the government ranks.


On a purely technical note, if a charitable or commercial organisation decided to fly or ship refugees to Australia, exactly what law would be broken by the organisation?

Is the term "people smugglers" another smokescreen?

Richard:  Charitable organisations from within Australia might be having similar thoughts, Jay.  I hear that some of their representatives are shortening their stays on Christmas Island for fear of being caught up in a new political stoush.

A migration law expert on people smuggling

I got this response from a migration law expert about people smuggling:

"There are laws making it an offence to try and organise 5 or more people to enter Australia when those people would be unlawful non citizens (people smuggling provisions)."

Your question is interesting and I've wondered the same thing. I think it goes back to the wider issue of Australians only seeming to care about asylum seekers coming by boat, because as Megan points out below, unlawful non-citizens arriving by plane way outnumber 'boat people'.

Law appears trumped

I've done a bit of surfing, and it appears that the relevant law is the Migrations act:

ComLaw Act Compilations - Attachment - Migration Act 1958

It seems to say that transporting non-citizens who don't have a visa is a crime (even if they would be granted a protection visa on arrival).

Section 42 says:

Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.

Which appears to be a contravention of the refugee convention.

Happy reading. It's rather messy to understand (particularly online), because there is so much definitional cross-referencing.

But that is not people smuggling

The law is stupid and counterproductive. We don't focus on anyone but poor Indonesian fishermen who supply boats for refugees.

The operative words in the stupid law cited above is that it does not take away the right to seek asylum in Australia, it simply tries to make catching a boat somehow illegal.

It is more deranged when we consider that the courts all say "this is not people smuggling" and every other country on the planet knows that providing transport for movement of refugees is not smuggling.

WE just don't want the refugees.

Calling them people would help

Ruddock invented this deranged Orwellian gobbledegook that some people still think is the truth.

Like "people smugglers" for Indonesian fishermen providing transport so the refugees can throw themselves at the authorities and beg for help. Our own courts claim it is not smuggling, and not one other nation on earth locks up the people who provide transport for refugees because they understand that refugees cannot say "beam me up Scotty" and end up somewhere else.

"Unauthorised arrivals" is another, yet the law authorises people to arrive without visas and ask for help by enshrining the refugee convention into law.

It's deranged.

No illegal "immigrants" either

The parliament changed the law in 1994 and removed all offences for being in or entering Australia without a visa.

Imagine this then - as a nation we have spent $3 billion locking people up for something they did not require.

As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law.”<><>

Is there a correct word to use?

Hi Marilyn, the legal information you've provided is very interesting. So is there a term that can be used to describe non-citizens, non-residents and others who are not on valid working visas?

It just makes you wonder, like you said, why is all this money being spent if one isn't technically breaking the law?

Illegal overstayers?

Tim, I have to agree with your argument, the mainstream media seem to use the term 'illegal asylum seeker' to promote fear into people. One thing that the mainstream media fail to acknowledge is the number of overstayers -- who in fact, are in the country unlawfully.

According to the Department of Immigration and Citizenship, as of 30 June 2008, there was an estimated 48,500 people who had overstayed their visas. Interestingly, the largest nationality of overstayers are American citizens. 

The illegal overstayers can afford to arrive in the country by plane, while a large number of asylum seekers cannot.

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