Assessing refugee protection claims at Australian airports: The gap between law, policy, and practice

Australia's current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department...

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Bibliographic Details
Published in:Melbourne University law review 2020-11, Vol.44 (1), p.162-211
Main Authors: Jefferies, Regina, Ghezelbash, Daniel, Hirsch, Asher
Format: Article
Language:English
Subjects:
Airline passengers
Airports
Border security
Decision making
Emigration and immigration
Human rights
Immigration
International cooperation
International law
International obligations
Judicial reviews
Laws, regulations and rules
Migration
Offshore
Passenger security screening
Passports & visas
Political aspects
Protection
Refugees
Transnationalism
Visas
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Summary:Australia's current approach to processing individuals who arrive by air and raise protection claims at or before immigration clearance at Australian airports has not been previously explored. This article reveals a set of policy and procedural instructions, recently released by the Department of Home Affairs ('DHA') under the 'Freedom of Information Act' 1982 (Cth), which establishes the administrative process of 'entry screening'. The article examines entry screening within the transnational framework governing Australia's legal obligations towards individuals seeking international protection. While much scholarly and public attention has been directed towards policies such as offshore detention and interdiction at sea, the documents reveal that policies designed to deter 'unauthorised maritime arrivals' have similar manifestations - and consequences - for 'unauthorised air arrivals'. The article then turns to an analysis of domestic law, arguing that the 'Migration Act' 1958 (Cth) does not authorise the entry screening procedures and that the procedures contradict certain statutory guarantees and procedural fairness. The documents further indicate that DHA lacks accurate data on protection claims made in Australian airports. Finally, the article examines why the current practice of entry screening violates Australia's international legal obligations of non-refoulement and non-penalisation.
ISSN:0025-8938
1839-3810