The (legal) difference between a refugee and an asylum seeker

//The (legal) difference between a refugee and an asylum seeker

The (legal) difference between a refugee and an asylum seeker

Sometimes, it might seem, contentious political issues are all about terminology. Words that dehumanise. Words that legalise—that is, words that tell people something’s acceptable.

Not enough words simply explain.

The High Court recently ruled that the government’s offshore detention centre on Nauru is constitutional (PDF, 78KB). Possibly the only good thing about this is that it’s made us think about what this means for real people.

At the moment, our focal point is Baby Asha: a 1-year-old child who’s now in the Lady Cilento hospital, but faces a future in Nauru. The only thing stopping her going is the hospital’s refusal to release her until they are sure she will be going to a safe place.

Obviously, the offshore processing facility is anything but.

Asha’s situation has made a lot of people talk about ‘refugees’.

But according to Australian law, ‘refugees’ don’t really have anything to do with Asha. And that’s why the problem is bigger than a lot of people think.

A normal (i.e. dictionary) definition of refugee is:

A person who has been forced to leave their country to escape war, persecution or natural disaster. (Oxford English Dictionary)

In Australian law, a refugee is a person who is:

outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country* (s.5H of the Migration Act 1958)

The thing is, Australia owes protection obligations to refugees—it’s one of those words that ‘legalises’.

To get that protection, a person’s fear of persecution has to be pretty bloody ‘well founded’ to count. It means that someone in an air-conditioned office has looked over some papers and then decided that that person who owned the papers has:

  • been sufficiently traumatised
  • reason to be sufficiently traumatised—(because maybe they could just quietly go to another part of the country they used to call ‘home’ and hope no one will hurt them?).

If the answers to all are ‘yes’… Congratulations, they are a refugee!

What about people whose homes are destroyed by an earthquake or tsunami? People whose children will have no future in a city torn apart by a warzone? Nope. Until and unless they’ve got the right evidence, they’re not refugees. Applied, but not accepted. Not legal.

These people may be called ‘asylum seekers’ on the news. But Australian law (the Migration Act 1958) calls them ‘unauthorised maritime arrivals’. Dehumanising words to justify dehumanising treatment. The law says that these people need to be sent to an offshore processing centre without natural justice (Natural justice is a topic for another post—but it’s as important as it sounds).

And we’ve all read what happens ‘offshore’.

That’s what’s in store for Asha. Unless she can prove that a ‘well-founded fear of persecution’ sent her here from her own country.

Wait a minute, wasn’t she born in Australia?

Yep.

But her only chance of being a little girl here is if she becomes a refugee.

Australian law’s got it covered.

By | 2017-05-19T08:20:28+00:00 February 22nd, 2016|Legal writing|0 Comments

About the Author:

Minnie has a Master of Public and International Law degree, and specialises in writing for vulnerable audiences—making complex policy meaningful to those who need it most.

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