Definitions

Who is an asylum seeker?

A person who leaves their own country to seek protection in another country is referred to as an ‘asylum seeker’.  This person’s refugee status has not yet been assessed.

As stated in Article 14 of the Universal Declaration of Human Rights, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

Who is a refugee?

A person who is recognised as a refugee under the UN 1951 Convention relating to the status of refugees (The Refugee Convention).  “Refugee” is defined by The Refugee Convention as a person:

“owing to 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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Australia is a signatory to both the Universal Declaration of Human Rights and the 1951 Convention relating to the status of refugees along with other conventions that form international human rights law.  According to the Australian Human Rights Commission:

“Seeking asylum in Australia is not illegal.  In fact, it is a basic human right.  All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia.  Countries that have ratified the Convention Relating to the Status of Refugees 1951, such as Australia, are required to assess asylum seekers’ claims for protection from persecution.  The Refugee Convention defines who is a refugee and sets out the basic rights that countries should guarantee to refugees.”

What is the difference between a refugee and a migrant?

The difference is a question of choice – a migrant chooses to leave their home country and may safely return at any time but a refugee has no choice and may not return safely.  As the UNHCR explains:

“Refugees are forced to flee because of a threat of persecution and because they lack the protection of their own country.  A migrant, in comparison, may leave his or her country for many reasons that are not related to persecution, such as for the purposes of employment, family reunification or study.  A migrant continues to enjoy the protection of his or her own government, even when abroad.”

Who is an unlawful non-citizen?  Does that description include people seeking asylum and refugees?

A person, who is not a citizen of Australia (a non-citizen), who enters or remains in Australia without a valid visa is an unlawful non-citizen.

The description “unlawful non-citizen” does not apply to people seeking asylum or refugees. 

People seeking asylum and refugees are lawful non-citizens as, under Article 14 of the Universal Declaration of Human Rights, they have the right to seek asylum from persecution and Article 31 of the 1951 Convention Relating to the Status of Refugees that protects people seeking asylum from being persecuted for entering a country illegally due to their difficult circumstances.

What are the rights of a refugee?

The 1951 Convention Relating to the Status of Refugees outlines the rights of people seeking asylum and refugees.  As a signatory to the Convention, Australia committed to enshrine the principles into domestic law.  Protection under the Convention is not extended to those who are a danger to the security of a nation of have been convicted of a serious crime and are considered a danger to the community.

There are a number of rights enunciated in the Convention the key elements of which, according to the UNHCR, are:

  • The key principle of non-refoulement (Article 33) where a person cannot be returned to a place where there is a serious threat to his or her life or freedom because of his or her race, religion, nationality, beliefs or membership of a particular social group or holding a certain political opinion. 
  • “The right not to be expelled, except under certain, strictly defined conditions (Article 32)
  • The right not to be punished for illegal entry into the territory of a contracting State (Article31)
  • The right to work (Articles 17 to 19)
  • The right to housing (Article 21)
  • The right to education (Article 22)
  • The right to public relief and assistance (Article 23)
  • The right to freedom of religion (Article 4)
  • The right to access the courts (Article 16)
  • The right to freedom of movement within the territory (Article 26)
  • The right to be issued identity and travel documents (Articles 27 and 28)”

Australia does not perform well on many of these rights (the rights it committed to granting people seeking asylum) especially where the person arrives in Australia on a boat.

What is refoulement?

According to the UN, the core principle of the 1951 Convention Relating to the Status of Refugees (enshrined in Article 33) is “non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.  This is now considered a rule of customary international law.”

Refoulement is returning a person seeking asylum or a refugee to danger.  Returning a person to a place where the person faces a serious threat to his or her life or freedom because of his or her race, religion, nationality, beliefs or membership of a particular social group or holding a certain political opinion.

What is meant by ‘regional’ in ‘regional solution’?

A ‘regional’ solution is often recommended, but what region?  What countries are included?

When suggesting a regional solution – Australia and its immediate, and particularly Asian, neighbours are included. 

The World Bank’s “East Asia and the Pacific” Region includes the countries:  American Samoa, Australia, Brunei Darussalam, Cambodia, China, Fiji, French Polynesia, Guam, Hong Kong SAR (China), Indonesia, Japan, Kiribati, Korea, Dem. People’s Rep., Korea, Rep., Lao PDR, Macao SAR (China), Malaysia, Marshall Islands, Federated States of Micronesia, Mongolia, Myanmar, Nauru, New Caledonia, New Zealand, Northern Mariana Islands, Palau, Papua New Guinea, Philippines, Samoa, Singapore, Solomon Islands, Thailand, Timor-Leste, Tonga, Tuvalu, Vanuatu and Vietnam.

Though its scope is beyond refugees and forced migration, the other source of member countries are those that are part of The Bali Process (The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime), established in 2002, has 48 member countries and organisations including:  Afghanistan, Australia, Bangladesh, Bhutan, Brunei Darussalam, Cambodia, China, DPR Korea, Fiji, Hong Kong SAR, India, Indonesia, Iran, Iraq, Japan, Jordan, Kiribati, Lao PDR, Macau SAR, Malaysia, Maldives, Mongolia, Myanmar, Nauru, Nepal, New Zealand, Pakistan, Palau, PNG, Philippines, Republic of Korea, Samoa, Singapore, Solomon Islands, Sri Lanka, Syria, Thailand, Timor-Leste, Tonga, Turkey, United States of America, Vanuatu, Viet Nam, UAE, International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and United Nations Office on Drugs and Crime (UNODC).

Are people arriving by boat refugees or economic migrants?

Given that between July 2008 and July 2013 over 90% of people seeking asylum who arrived in Australia by boat were found to be refugees once their claim was assessed, it must be held that people who seek asylum and arrive by boat are refugees.

In awarding refugee status, Australia acknowledges that the person has fled their country, not by choice like a migrant, but because, as described in the United Nations 1951 Convention relating to the Status of Refugees, they are unable to reside in their home country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

Of the people who sought asylum in Australia and arrived by plane, in the same period (July 2008 to July 2013) about 45% were found to be refugees. This is an interesting statistic given Australia has such harsh policies in relation to the people who arrive by boat, over 90% of whom are refugees.

More information about asylum seekers and refugees plus answers to common questions on the subject can be found in the fact sheets available from The Refugee Council of Australia, The Kaldor Centre for International Refugee Law at UNSW and the Commonwealth of Australia Parliamentary Library using the links below:


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