Interception of asylum seekers- a minor field study on the co-operation between Australia and Indonesia

University essay from Lunds universitet/Juridiska institutionen

Author: Anna Carlson; [2002]

Keywords: Folkrätt; Law and Political Science;

Abstract: The thesis is based on a field study in Indonesia conducted in October-December 2001 and it focuses on one part of the Australian strategy for preventing asylum seekers from entering its borders in an irregular manner: an arrangement on the interception of asylum seekers transiting Indonesia en route to Australia. The Australian government argues that it wants to prevent secondary movements. It is held that many of the current flows are refugees either forsaking effective protection that they have enjoyed in a country of first asylum, or by bypassing opportunities to seek and obtain it in neighbouring countries. Based on the material gathered in Indonesia, the thesis presents a rather thorough description of what happens in practice to those who are intercepted in Indonesia on their way to Australia. In addition the reader is informed on the roles of the different parties involved. Under this arrangement, the Indonesian authorities detect and intercept persons who are transiting Indonesia without the proper documentation, i.e. passport or visa. The authorities subsequently inform the International Organization for Migration (IOM) which mainly is in charge of providing the asylum seekers with accommodation and facilities while awaiting the United Nations High Commissioner for Refugees to process the asylum seekers for refugee status. Since Indonesia has not ratified the 1951 Refugee Convention, it has no system for handling claims of asylum and since those intercepted have entered without the proper documentation, they are regarded as irregular migrants who according to Indonesian legislation shall be subject to deportation. However the government allows the asylum seekers and refugees to remain during the process. Those accorded refugee status remain in Indonesia while awaiting UNHCR to find a third country to accept them for resettlement&semic a time-consuming and difficult task. Further, the thesis includes an assessment under international law of the protection offered to the refugees and asylum seekers under this arrangement on interception. This part focuses inter alia on the protection available against refoulement, access to a determination process and the issue of detention of asylum seekers. The conclusion is drawn that due to the involvement of UNHCR and IOM, there are strong safeguards against refoulement and the asylum seekers and refugees are afforded basic protection. The only existing agreement is a Memorandum of Understanding between IOM and Australia which stipulates that IOM shall provide the asylum seekers with facilities and that Australia will pay for the expenses IOM has for the asylum seekers. The conclusion is drawn that the arrangement never would operate without the financial support from Australia to IOM. Further, the thesis analyses whether Indonesia may be bound by the principle of non-refoulement though it has not ratified the 1951 Refugee Convention and the conclusion is drawn that there are strong indications that the principle has achieved the status of customary law, obliging Indonesia to refrain from refoulement. In addition, Indonesia has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The conclusion is drawn that if Indonesia forcibly returns a person to a state where he or she may face persecution, it may be at risk of violating its international obligations. The arrangement lacks formal agreements and a clear distribution of legal responsibilities. Thus, the thesis includes an assessment of the issue of international state responsibility and it is concluded that in case of any violation against the principle of non-refoulement, Indonesia is the only state that can be held viable. As a result, the refugees and asylum seekers are under the sole responsibility of a state which has neither any financial possibilities of protection refugees, nor any legal framework to provide such protection. The asylum seekers and refugees are dependent on international organisations towards which they have no possibilities to enforce their rights. Though the arrangement is an Australian invention, and is undertaken in order to enforce the Australian migration policy, Australia seems to remain legally untouchable since it more or less hides behind an international organisation, IOM and all actions towards the asylum seekers and refugees are undertaken within the Indonesian jurisdiction. The arrangement is carried out on an ad hoc basis without formal agreements on the distribution of responsibilities, and there is no effective supervision of the actions taken by the parties involved, and thus there is a high level of insecurity as to the enforcement of the protection offered. In conclusion, Australia has created an arrangement which technically justifies its arguments that those entering Australia have forsaken protection offered elsewhere. However, the protection offered in Indonesia is at a minimum level and is not offered by another state but by international organisations. All actions are undertaken within the Indonesian jurisdiction and thus the legal responsibility for the asylum seekers and refugees is carried by a state without any infrastructure enabling it to take care of the asylum seekers and refugees remaining in its territory. In addition, it is highly questionable that a industrialised state, with a developed infrastructure for handling asylum cases creates an arrangement where the burden is carried out by a development country without supporting it in creating a proper refugee regime.

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