Asylum claims needs one international tribunal: expert
Updated
A prominent refugee scholar has backed calls by an Australian judge for a single international tribunal to process asylum claims. Melbourne Law School Dean James Hathaway says states and the UNHCR are deciding refugee applications in radically different ways. And he says that's encouraging asylum seekers to travel to countries where they're likely to get a fairer hearing. The dean is echoing the concerns of Australian federal court judge Tony North, who's told Fairfax newspapers the process resembles a lottery.
Presenter: Joanna McCarthy
Speakers: Professor James Hathaway, dean of Melbourne Law School; David Manne, coordinator, Refugee and Immigration Legal Centre
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MCCARTHY: He's been called the intellectual architect of contemporary refugee law, but Professor James Hathaway says the current system isn't working. Under the Refugee Convention, countries make their own assessment of whether an asylum seeker has a well-founded fear of persecution.
HATHAWAY: Now state parties are obliged to apply the same definition but they do so in radically different ways and that is a huge problem for the credibility of system and it does distort the ways in which asylum seekers travel. When a state is applying convention fairly it usually does end up being more attractive than one that applies in a mean-spirited country and that distorts the whole system.
MCCARTHY: It's the same concern raised by Australian federal court judge Anthony North. He's told Fairfax newspapers that asylum claims should be processed by an international tribunal to advise on claims and guide national courts. It's a role currently played by the United Nations High Commission for Refugees and that, he says, creates a conflict of interest.
HATHAWAY: What he was saying is that there is an inherent conflict of interest when the same agency that is supposedly to oversee the application of the convention is in fact applying the convention. And so what Justice North was rightly pointing to is the fact that the Refugee Convention is the only international human rights treaty that does not have an independent supervisory body to ensure states actually comply with its provisions.
MCCARTHY: Professor Hathaway says the idea of a single tribunal was considered by signatories to the convention in 2001.
HATHAWAY: A proposal that at the end of the day was favoured only by Switzerland. The UNHCR itself was not in favour of the proposal and that I think sheds some light on Justice North's concerns that the agency may not be overly keen to see scrutiny of its activities at a super national level.
MCCARTHY: Professor Hathaway says the UNHCR just doesn't have the resources to ensure its decisions are made to the highest standards.
HATHAWAY: UNHCR'S budget I have to say is very, very much controlled by rich states. They get about 98.5 per cent of their money every year from a small number of countries as voluntary contributions, virtually no guaranteed budget, and it is the case that the UNHCR goes in and does the termination in places that the government of that state is usually unwilling to do it and certainly to fund it, so it is the least bad option.
MCCARTHY: David Manne is the co-ordinator of the Refugee and Immigration Legal Centre in Australia. He says the focus on the UNHCR obscures the real issue.
MANNE: Although there's no question that there is a lot of room for improvement in relation to processing by the UNHCR and also there is an urgent need for additional resourcing to ensure that proper quality and promptness of processing is achieved - but really the big problem here, the real problem, remains the shortage of resettlement places around the world, and that's not ultimately something that UNHCR can solve - that's the job of countries.
MCCARTHY: Australia's obligations to provide protection are again in the public spotlight, with the stalemate over the 78 asylum seekers on the board the Oceanic Viking. Professor Hathaway says increasing refugee flows around the world mean the time is right to review how claims are processed. And he says Australia should be taking the lead.
HATHAWAY: Instead of an 'Indonesia solution', what we need is an 'Australia solution'. We should lead on this, we should provide the impetus internationally to actually revisit the mechanisms of implementation. For a country that aspires to [United Nations] Security Council membership status, it's time we lead in a way that is responsible, rather than simply by dumping people into places like Indonesia that we know have no obligations to refugees.
