AUSTRALIA, THE ‘BOAT PEOPLE,’ AND THE ‘PACIFIC SOLUTION
16
freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political
opinion.‟ This is also known as the principle of non-refoulement. Importantly, refoulement
is not restricted to returning a refugee to the place where they come from.
35
It also forbids Contracting States not to locate refugees to a territory in which refugees
are at „risk of persecution.‟
36
Secondly, the Refugee Convention also prohibits discrimination of asylum seekers based on the mode of their arrival to the country where they are seeking
protection.
37
The 1951 the Refugee C onvention article 1 forbids „...penalties such
as limitation and prevention to immigration access may not be imposed on refugees „on account of their illegal entry.‟
38
The cause of discrimination in this article includes the differentiation between classes of visas provided by Australian
Immigration for asylum seekers based on their legality in entering Australian territory.
Thirdly, the ICCPR guarantees that every refugees and asylum seekers will be free from arbitrary arrest or detention.
39
This Convention provides many fundamental rights, including prohibition of torture, cruelty, inhuman and
degrading treatment.
40
In its article 7 and 61, ICCPR claims:
41
35
Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at: http:www.unhcr.org3b66c2aa10.pdf., accessed in the 16th of October 2014.
36
Ibid.
37
Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at: http:www.unhcr.org3b66c2aa10.pdf., accessed in the 16th of October 2014.
38
The Refugee Convention, 1951. Available at: http:www.unhcr.org4ca34be29.pdf, accessed in the 15
th
of October 2014.
39
Convention and Protocol Relating to the Status of Refugees. The U.N Refugee Agency. Available at: http:www.unhcr.org3b66c2aa10.pdf., accessed in the 16th of October 2014.
40
Core Human Rights in the Two Covenants. United Nations Human Rights Office of the High Commissioner. September, 2013.
http:nhri.ohchr.orgENIHRSTreatyBodiesPage20DocumentsCore20Human20Rights.pdf, accessed in the 16
th
of October 2014.
17
„No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.‟ Detaining refugees in this treatment may be widely considered as unlawful under
the ICCPR, and may also constitute a penalty for illegal entry as prohibited under the Refugees Convention.
42