Table Of ContentREFuGEES
Jane McadaM is Scientia Professor of Law and Director
of the Andrew & Renata Kaldor Centre for International
Refugee Law at UNSW Australia. She holds an Australian
Research Council Future Fellowship, and is a non-resident
Senior Fellow at The Brookings Institution in Washington
DC and a Research Associate at the University of Oxford’s
Refugee Studies Centre. Professor McAdam has published
many books and articles on international refugee law and
forced migration. She is joint Editor-in-Chief of the Inter-
national Journal of Refugee Law.
Fiona chong is a recent law and economics graduate
of UNSW Australia. She was the Research Assistant to
Professor Jane McAdam in 2012 and 2013, during which
time she undertook research on international refugee law,
complementary protection and climate-change-related
displacement.
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REFUGEES
WHY SEEKING
ASYLUM IS LEGAL
AND AUSTRALIA’S
POLICIES ARE NOT
JANE McADAM AND FIONA CHONG
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REFUGEES
WHY SEEKING
ASYLUM IS LEGA L
AND AUSTRALIA’ S
POLICIES ARE NOT
JANE McADAM AND FIONA CHONG
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A UNSW Press book
Published by
NewSouth Publishing
University of New South Wales Press Ltd
University of New South Wales
Sydney NSW 2052
AUSTRALIA
newsouthpublishing.com
© Jane McAdam and Fiona Chong 2014
First published 2014
10 9 8 7 6 5 4 3 2 1
This book is copyright. Apart from any fair dealing for the purpose of private
study, research, criticism or review, as permitted under the Copyright Act,
no part of this book may be reproduced by any process without written
permission. Inquiries should be addressed to the publisher.
National Library of Australia Cataloguing-in-Publication entry
Author: McAdam, Jane, 1974– author.
Title: Refugees: why seeking asylum is legal and Australia’s polices are not/
Jane McAdam and Fiona Chong.
ISBN: 9781742231396 (paperback)
9781742247076 (ePDF)
9781742241852 (ePub/Kindle)
Notes: Includes index.
Subjects: Refugees – Legal status, laws, etc.
Refugees – Government policy – Australia.
Australia – Emigration and immigration – Government policy.
Other Authors/Contributors: Chong, Fiona, author.
Dewey Number: 362.8756
Design Josephine Pajor-Markus
Cover design Xou Creative
Printer Griffin Press
All reasonable efforts were taken to obtain permission to use copyright
material reproduced in this book, but in some cases copyright could not be
traced. The authors welcome information in this regard.
Note The names of some refugees and asylum seekers have been changed to
protect their identity.
This book is printed on paper using fibre supplied from plantation or
sustainably managed forests.
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Contents
Acknowledgments vi
Abbreviations vii
Introduction 1
1 Refugees and international law 9
2 Identifying who is a refugee 37
3 Addressing some common myths about asylum seekers (I) 50
4 Addressing some common myths about asylum seekers (II) 69
5 Mandatory detention 88
6 Offshore processing 113
7 Turning back boats 135
8 A regional protection framework 150
9 Legal assistance 162
10 Why international law matters 170
Conclusion 181
Notes 187
Index 214
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Acknowledgments
We would like to thank the following people for graciously
responding to queries and/or commenting on draft sections
of the book: Joyce Chia, Claire Higgins, Tanya Jackson-
Vaughan, Mary Anne Kenny, Ben Lewis, Lucy Morgan,
Kate Purcell, Steve Roberts, Kunal Sharma and Ben Saul.
Any errors or omissions remain, of course, our own. We
would also like to thank Jean Kingett for her guidance and
patience throughout the editing process, and the team at
UNSW Press – in particular Phillipa McGuinness and
Heather Cam – for their enthusiasm and support.
vi
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Abbreviations
ASAS Australian Red Cross Asylum Seeker
Assistance Scheme
ASIO Australian Security Intelligence
Organisation
CAS Australian Red Cross Community
Assistance Support
EU European Union
IAAAS Immigration Advice and Application
Assistance Scheme
ICCPR International Covenant on Civil and
Political Rights
vii
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refugees
ICESCR International Covenant on Economic,
Social and Cultural Rights
ICJ International Court of Justice
IDP Internally displaced person
PNG Papua New Guinea
RRT Refugee Review Tribunal
SIEV Suspected Illegal Entry Vessel
THC Temporary Humanitarian Concern (visa)
TPV Temporary Protection Visa
UN United Nations
UNHCR United Nations High Commissioner for
Refugees
viii
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Introduction
I am a Hazara, [a] minority ethnic group in Afghanistan that is
constantly persecuted by the Taliban. When I was a teenager
my father was taken to prison and one of my older brothers went
missing … So my family combined their life savings to urgently
smuggle me out of Afghanistan. I had never been out of the
country before and had no passport or papers. I was 19 years
old. I had no idea where I was going or what was happening. I
was in Pakistan, then Singapore, then Indonesia. None of these
countries offer protection to refugees. I was at the mercy of
the smugglers. I was too afraid to go to the authorities in those
countries for help because I thought I would be deported back to
Afghanistan. One night I was told to get on a small fishing boat.
I thought I was going to die. I had never seen the sea and didn’t
know how to swim, now I was sitting in one boat with 225 people
squashed on top of each other. Only after we were at sea did I find
1
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