Experts say new changes to immigration laws which come into effect this weekend - which remove non-refoulement obligations in some circumstances - will be out of step with international law.
The Australian government will soon begin processing the asylum claims of more than 25,000 people who came to Australia by boat before 2014.
The government has been waiting until after new laws come into effect on Sunday to begin assessing the backlog of claims.
Thirty-thousand people who arrived during six years of Labor government have not had their claims determined, and 4,500 of those assessments had been started, the government has told SBS in a statement.
One of many changes to immigration laws coming into effect this weekend is the addition of 197C to the Migration Act 1958.
The change means Australia’s non-refoulement obligations are irrelevant to removing an 'unlawful non-citizen' under circumstances outlined in section 198.
Refugee Council of Australia (RCA) spokesperson Rebecca Eckard said the legal changes are inconsistent with international law and may place people at risk of being sent back to dangerous situations.
"The changes mean that an officer must remove an unlawful non-citizen under section 198, even if removal will violate Australia’s non-refoulement obligations," Ms Eckard said.
The United Nations defines refoulement as returning a person to a situation where they would be in harm’s way, such as sending them to a country where they might be at risk of torture.
The amendment’s explanatory memorandum says Australia would still meet its non-refoulement obligations by other means.
'For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act,' the document says.
Ms Eckard said the RAC does not see how this could work in practice.
"Australia’s new laws rely solely on a political promise to comply with obligations,” she said.
The Refugee Advice Casework Service (RACS) said the new law authorised violations of Australia’s international obligations.
"This new law appears to be an attempt by the government to make its handling of asylum seekers immune to the oversight of the Australian courts," the RACS said.
A spokesperson for Immigration Minister Peter Dutton said the government did not wish to avoid its obligations, but clarify how international law effects decisions to remove unlawful non-citizens.
In March, Mr Dutton said the amendments were important to process the claims for asylum.
"This package of legislative reforms will allow the government to begin a new fast track assessment of asylum claims of the legacy caseload of illegal maritime arrivals who arrived under Labor," Mr Dutton said in March.
"The government can finally begin to clean up Labor’s illegal maritime arrival mess after passing these bills," a spokesperson for Minister Dutton said on Friday.
SBS asked Labor why Australia received so many boat arrivals in its six years of governing, and if the claims were processed fast enough.
Shadow Minister for Immigration and Border Protection, Richard Marles, said the government was to blame for the backlog of claims.
"At the end of 2013 the Abbott government effectively shut up shop in terms of processing people in an act of petulance in response to its failure to reintroduce Temporary Protection Visas. We've seen barely any processing since then," Mr Marles said.
Mr Dutton's spokesperson said Labor frustrated the government's attempts to reintroduce Temporary Protection Visas, which the government needed to process the backlog of claims.
Sydney-based immigration solicitor Justin Moyes said the insertion of 197C would limit the ability of applicants to challenge their removal in the courts and that further creates a risk of refoulement.
Ms Eckard said non-refoulement obligations had saved lives previously, and RCA were concerned about how robust the government’s new fast tracked assessments process would be.
"Our concern is that the fast track system and lack of legal advice and assistance will mean that this system fails people with valid protection claims," Ms Eckard said.
Key changes that become law this weekend are:
- Temporary protection visas (TPVs) and Safe Haven Enterprise Visa (SHEVs): asylum seekers who arrived by boat or air without a visa will now only be eligible for a TPV or SHEV where they are found to engage Australia’s protection obligations and have no pathway to permanent protection in Australia. Asylum seekers who are subject to mandatory transfer to, and resettlement in, Nauru and Manus Island will continue to have their refugee cases processed offshore.
- Fast track assessment of claims: asylum seekers who arrived by boat from 13 August 2012 will be subject to a fast track refugee assessment process with no access to the Refugee Review Tribunal (RRT). These asylum seekers will only have access to a far more limited review process under a new body, the Immigration Assessment Authority (IAA), and some asylum seekers will be completely excluded from any form of merits review.
- Stronger removal power: the new laws mandate that Australia’s non-refoulement obligations are irrelevant to the compulsory removal of a person who does not have a visa.
- Narrowing existing refugee law: the new laws codify Australia’s interpretation of its protection obligations under the Refugee Convention, rendering the Australian definition of 'refugee' separate to and narrower than the currently accepted international law definition.
- Status of newborn children: Australian born children of asylum seekers who arrive by boat (unauthorised maritime arrivals) will now be treated in the same way as their parents, including being eligible for transfer to a regional processing country and barring them from applying for a protection visa in Australia (where this applies to their parents).
- Cap on protection visas: the Minister for Immigration (the Minister) now has the ability to place a limit on the number of protection visas that may be granted in a financial year (other than TPVs and SHEVs).
- Shifting the burden of proof entirely upon an applicant for protection, such that asylum seekers are responsible for specifying all particulars of a claim for protection from the outset and decision makers are not required to take active steps to explore whether an asylum seeker is entitled to refugee status. This amendment takes Australia well below international standards in relation to effective refugee status determination procedures.
- Introducing a new requirement that the Refugee Review Tribunal (RRT) draw an adverse inference on credibility where new evidence or claims are provided to the RRT that was not already provided in the initial application, unless a reasonable explanation is provided for the delay. This applies irrespective of the RRT’s view of the relevance or genuineness of the evidence or claim.
- Introducing a new requirement that if an asylum seeker is unable to provide proof of identity or has provided a document suspected to be non-genuine, the visa application must be refused, unless there is a reasonable explanation and the asylum seeker takes reasonable steps to evidence their identity. In these circumstances, a protection visa application must be refused even where there is in fact no doubt about the applicant’s identity or need for protection.
- Removing from the grounds for the grant of a protection visa that a person is a member of the same family unit as a person who has already been found to be a refugee. This amendment will affect refugees in Australia who currently hold a protection visa and who have an immediate family member (such as a spouse or child) who is also in Australia and who has subsequently applied for, or who wants to apply for, a protection visa. The family member will no longer have any right to remain in Australia on the basis of their family relationship.