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Community Services – The 1951 Refugee Convention

All human rights are inherent rights, irrespective of colour, gender, country, race, language, religion, or any other status. Human rights include the rights to life and liberty, freedom from slavery and torture as well as freedom of thought and expression. The word 'Man's Rights' is not new, but the meaning is as old as mankind. These are basic rights for all since they concern equality and dignity and eventually contribute to social welfare. Maintaining the dignity of a person is vital for social stability, as abuse of the person can have major consequences for individuals and society as a whole. The State maintains the framework of social order by imposing various laws under which a well-organized social life is not possible. It has been recognized as the primary goal of statehood for defending human rights and freedoms.

The Australian government is responsible for safeguarding the human rights of an asylum-seeker and refugee arriving in Australia, irrespective of arrival or visa-free arrival.

As a party to the Convention on Refugees, Australia has voted not to return to a country where people who satisfy the requirements of the UN refugee will be threatened by life or freedom. This is known as the concept of non-refoulment.

Australia is committed, under the International Treaty on Civilian and Political Rights (ICCPR), the Convention against Torture (CAT), and the Convention on the Rights of the Child (CRC), not to return persons at real risk for violating human rights under these conditions to third countries and not send individuals to third countries where they are at real risk of violating their human rights under these circumstances. This also extends to people who have not been detected as refugees (Karlsen, 2016).

Furthermore, in the case of asylum seekers and refugees in Australia (or elsewhere in Australian jurisdiction), the Government of Australia has obligations under various international treaties to ensure that their human rights are respected and secured. These Treaties include the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the Convention against Torture, and the Convention on the rights of children. The right to be held not unfairly contained certain rights (Acer & Byrne, 2017).

Ever since at least the early 90s, Member States have shifted responsibility to 'protected third countries' for reviewing such application for asylum. This implies that they did not feel a legal duty to review the applications lodged there within their territory. Other countries are more hesitant to give refugees permanent asylum. Australia was the first country to permanently break the ranks by giving the accepted refugees temporary security visas. The Refugee Convention of 1951 does not apply to asylum procedures or the State responsible for asylum procedures. It was often believed that the country in which the request was submitted was responsible for determining the merits of the claim (Gil-Bazo, 2015). The key problem is, of course, the concept of "security," which should include a minimum degree of physical security and the preservation of human rights of the refugee. Peter Bergen also writes that the concept of security should include ensuring access to equal asylum procedures. He said the definition of refugee in 1951 was not interpreted consistently, and in one country, but not in another, a person could be recognized as a refugee. Inurement applies to 1951 as amended by the Protocol of 1967, the Convention on the Status of Refugees. It allows Australia explicitly to apply domestic legislation that establishes border integrity so that individuals escaping persecution are covered for particular reasons. Because of considering children in detention for human rights, the Refugee Convention makes the Refugee Convention instantly applicable (Fiske, 2016). The Convention on Refugees of 1951 says nothing about which state to protect, which refugee at which point. State concerns for the safety of refugees go far deeper than asylum/admission. The lack of security in the international refugee arrangements and the lack of explicitly assigned obligations between States have a direct relation (Hollenbach, 2016).

Numerous attempts have been made to create a territorial asylum right. There has been no further effort to establish a right since then. Under international law, refugees are not entitled to claim asylum. The concept of non-refoulment, now considered to be customary international law, remains binding for Nations. Asylum seekers should not be sent back to countries where the persecution exists until it has been declared that they are not refugees, Peter Bergen writes (Phuong, 2005). The draught Convention was not ratified by the United Nations Conference on Territorial Asylum in Geneva in 1977.

There is no requirement to offer asylum under international law. The refugee ban applies to all refugees already on the ground. Some countries disagree with this view of the non-refoulment concept. The key challenge is that every state can take the view that refusal at the border is legally lawful under international law. The consequence will be a refusal to admit the refugee to either country (Syahrin, 2017). This is generally referred to as the "in-orbit refugee," and is referred to as the "in-orbit refugee." The United States Supreme Court claimed in 1993 that the concept extends not only to those who are refused entry to the border but only to refugees within State territory. This does not necessarily lead to a return to a country in which the refugee would be fearful of persecution and thus not necessarily lead to retreat. The 1951 Convention on refugees indicates that the provisions only apply for as long as the fear of persecution is well established. As a result, the asylum state is again free, once such a fear ends, to decide the status of the individual concerned as regards immigration (Joly, 2016). Once again, it may be argued that if states are to practice their obligation of non-refoulment in good faith, they should process the petition for asylum instead of moving it to a third State.

Refugee convention is a progressive way to balance the common commitment of States to self-interested immigration regulation with the fact of coercive migration. To retain total control over immigration, governments have understood, since the early part of this century that they have to fulfil entry criteria in an, especially urgent manner. This cannot happen because laws and institutions have little to do with the desperate ingenuity of people escaping extreme harm, and the risk of destruction to these larger control policies is risked. The refugee law legitimizes and preserves the viability of the protectionist standard, by creating a subset of citizens who pursue freedom of the international movement.

References for Implementation of Non-Refoulement Principle

Acer, E., & Byrne, O. (2017). How the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 has undermined US refugee protection obligations and wasted government resources. Journal on Migration and Human Security, 5(2), 356-378.

Fiske, L. (2016). Human rights, refugee protest and immigration detention. London: Palgrave Macmillan.

Gil-Bazo, M. T. (2015). Refugee protection under International Human Rights Law: From non-refoulement to residence and citizenship. Refugee Survey Quarterly, 34(1), 11-42.

Hollenbach, D. S. (2016). Borders and duties to the displaced: Ethical perspectives on the refugee protection system. Journal on Migration and Human Security, 4(3), 148-165.

Joly, D. (2016). Haven or hell? Asylum policies and refugees in Europe. Springer.

Karlsen, E. (2016). Refugee resettlement to Australia: what are the facts?

Phuong, C. (2005, May). Identifying States’ responsibilities towards refugees and asylum seekers. In research forum for the International law: Contemporary problems, Geneva.

Syahrin, M. A. (2017). The Implementation of Non-Refoulement Principle to the Asylum Seekers and Refugees in Indonesia. Sriwijaya Law Review, 1(2), 168-178.

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