Australian Refugee Rights Alliance No Compromise on Human Rights. Refugees and The Human Rights Council THE HUMAN FACE OF AUSTRALIA S REFUGEE POLICY

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1 Australian Refugee Rights Alliance No Compromise on Human Rights Refugees and The Human Rights Council THE HUMAN FACE OF AUSTRALIA S REFUGEE POLICY

2

3 Australian Refugee Rights Alliance Aileen Crowe Refugees and The Human Rights Council The Australian Refugee Rights Alliance (ARRA) welcomes the new Human Rights Council and is encouraged by the possibility of the Council strengthening the protection of people fleeing countries in pursuit of asylum, safety and security. With its broad human rights focus the Human Rights Council has the potential for passing resolutions complimenting the Agenda For Protection and strengthening other UN resolutions. Since human security, development and human rights issues are linked with migration and cross-border issues i there is greater potential for synergy between the Human Rights Council and UNHCR. Terrorism and the fear of terrorism could cause States to override their human rights obligations in their endeavours to protect their citizens. Free trade and the need to be economically viable could drive States to ignore the human rights responsibilities of competing States in their attempts to engage in the market economy. Where there are flagrant breaches of human rights in proposed States, the hosting of international sports events poses problems for human rights advocates and competitors. Brutality, disregard of basic human rights, economic marginalisation, discrimination, exclusion or conflict have become features of everyday life in quite a number of countries ii ARRA welcomes a Council that will be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; and that will address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote effective coordination and the mainstreaming of human rights within the United Nations system. iii ARRA is hopeful that the Special Procedures mechanisms Rapporteurs and Representatives continue to examine, monitor, advise, and publicly report on human rights situations in specific countries and territories, or on major phenomena of human rights violations worldwide. iv Sub commissions and working groups can support, assist and monitor human rights breaches in the following refugee and migration areas: Complimentary Protection Monitor States that are inclined to return people who flee as a result of serious human rights violations which do not fit the UN definition of a Refugee. Some examples of such violations are: Colombians fleeing the violence of the drug trade; Fallon Gong practitioners fleeing imprisonment, the possibility of death and the prospect of their human body organs being forcibly removed and sold; women, children and men who have suffered deception, degradation and abuse in the sex trade; child soldiers and those adults affected by having been taken from their families and forced to be child soldiers (Universal Declaration of Human Rights (UDHR) 1, 3, 4, 5, 6, 7). Assist States particularly developed States to implement accessible complimentary visas for such categories of fleeing people (International Covenant on civil and Political Rights (ICCPR) 2.3,6, 13, 14,16).

4 Encourage the use of Bridging visas only during the complimentary visa processing period which includes health and security checks, and recommend States grant work rights, study rights and medical care, thus avoiding the exploitation of workers (UDHR 23, 25, 26; International Covenant on Economic, Social and Cultural Rights (ICESCR) 6, 7). Recommend that complimentary visas include benefits equivalent to those of permanent protection visas such as free language classes and medical care, family reunification, social security benefits, school fees equivalent to the local area, and access to overseas travel (ICESCR 11). Encourage States where labour is being sought overseas, to consider implementing complimentary visas before accessing the detention and/or deportation options, when examining people who have overstayed for a lengthy period and have integrated into the local society through long-term work commitments and having developed close ties with the local community through marriage and family (UDHR 2, 16; ICESCR 10). Detention/Deportation Discourage extra territorial processing such as Australia s Pacific Solution on Nauru Island, so that people seeking asylum can access appropriate legal and humanitarian support and accessible settlement in the shortest possible time (The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CATOCIDTP) 7, 8, 9). Discourage States from establishing processing centres in remote areas such as Australia s Christmas Island where people seeking asylum are isolated from accessible legal support and advocacy (The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CATOCIDTP) 7, 8, 9). Encourage States never to detain people seeking asylum if it can be ascertained that they have suffered any form of torture before arrival, because people who have been tortured could have the trauma exacerbated by detention (CATOCIDTP 8; UDHR 12 :1). Encourage States not to detain children and unaccompanied minors under any circumstances (Convention on the Rights of the Child (CROC) Articles 4, 5, 6). Monitor the detention period so that there is a reasonable time for performing health and security checks only, to ensure that other acts of cruel, inhuman or degrading treatment or punishment are not carried out with the consent or acquiescence of a public official (CATOCIDTP 1, 2; UDHR 9). Strengthen UNHCRs principle of non-refoulement particularly where States have a consistent pattern of gross, flagrant or mass violations of human rights (CATOCIDTP 1, 2). Encourage States to develop safeguards on the withholding of personal data from country of origin authorities (UDHR 12). Temporary Protection Promote the need for physical security and basic standards of treatment for developed States, by denouncing all forms of temporary protection because such visas extend the period of insecurity (UDHR 22); are discriminatory regarding the rights of children to be with both parents through family reunification(icescr 10;

5 CROC 2); promote the inhumanity of the psychological uncertainty of gaining full protection, and the instability of such conditions for sometimes, years (Declaration on the Human Rights of Individuals Who are not nationals of the Country in which They Live, 12). Encourage States, should temporary protection be maintained, to reconsider the visa status immediately the person has employment and shows a degree of integration in the community, rather than insist on three or six years of uncertainty, thus allowing family reunification and a more healthy lifestyle to begin much sooner (ICESCR 10). In host countries in the developing world refugees can bring benefits to the local economy and, if properly integrated, improve infrastructure and services, and can become agents of development v. Permanent Protection Encourage States to grant permanent protection where a person has a recognised mental health problem because the person s mental condition could be exacerbated by a lack of security and safety as a result of temporary protection or prolonged detention (ICESCR 12). Introduce a quota system whereby developed States must include elderly refugees (United Nations Principles for Older Persons 17, 18) and refugees with a disability, in their numbers for resettlement (Declaration on the Rights of Disabled Persons Articles 3, 8. 10). Encourage States to recognise the position of Stateless persons by granting protection as quickly as possible (UDHR 15). Monitor States who are inclined to revoke citizenship or permanent protection as a result of offences before the law where a heavier penalty should not be imposed than the one that was applicable at the time the penal offence was committed (UDHR 11,15). Encourage States to be pro-active in the social integration of minority groups and examine procedures which seriously inhibit the social integration of people pursuing permanent protection, recognising that human rights are at the core of human security and closely interlinked with human development vi. The criminalisation of asylum-seekers and refugees serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment. The Council could promote a more tolerant framework for refugee protection (The Committee on Elimination of Racial Discrimination Articles 1,2 5) Accessibility Develop structures whereby the Human Rights Council can respond effectively and efficiently to systemic and localised human rights breaches, for example that of violence against women or forcing children to become child soldiers. Develop pathways for joint actions and training. Bill of Rights Continue to monitor States who have adopted a Bill of Rights to constitutionally enshrine human rights principles and practices that will protect all minority groups including those seeking asylum (ICESCR 3, 4, 5).

6 Recommendations 1. When advocating on behalf of Refugees and people seeking asylum NGOs develop deeper relationships with particular Rappporteurs and Human Rights Council Representatives, through accessing appropriate Human Rights Instruments. 2. That the Human Rights Council includes the plight of refugees and people seeking asylum. 3. That UNHCR and the Human Rights Council seek ways of working together to lessen the suffering of refugees and people seeking asylum. Refugees and Human Rights Instruments International Covenant on Economic, Social and Cultural Rights Universal Declaration of Human Rights The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment United Nations Principles for Older Persons International Covenant On Civil and Political Rights UNHCR Declaration on the Human Rights of Individuals Who are not Nationals Refugees and Asylum Seekers NGOs as advocates Declaration on the Rights Human Rights Council Convention on the Rights of the Child The Committee on Elimination of Racial Discrimination i Erika Feller, Institute of European Affairs, Rapporteurs Report: Asylum Issues, 4 July 2006 ii Erika Feller, UNHCR fifty-fifth Session of the Executive Committee of the High Commissioner s Programme, Geneva, iii Human Rights Council, G.A. Res. 60/251, U.N. Doc. A/RES/60/251 (March 15, 2006) Para 2-3 iv Special Procedures assumed by the Human Rights Council; New: Report of the 13 th Annual Meeting of Special Procedures, June 2006 (advanced unedited version). v Institute of European Affairs, Rapporteurs Report: Asylum Issues, Erika Feller 4 July 2006 vi Canadian statement on Reform of the UN human rights system to the Commission on Human Rights, April 12, 2005.

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