It might seem counter-intuitive, but for the purposes of migration Australia is not Australia at all.
Indeed, while it would be sensible to assume that setting foot on Australian soil would mean that a person has entered Australia, the Migration Act 1958 specifies that this simple assumption is far more confusing than it seems.
Firstly, for the purposes of the Australian Government’s immigration policy – and more pointedly, to stem the flow of refugee arrivals from Indonesia and beyond onto Christmas Island, the Parliament passed a law (Migration Amendment (Excision from Migration Zone) Act 2001 and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001) that stated that certain external territories would no longer form part of Australia’s migration zone.
Why did this change happen? It was the urgent knee-jerk political reaction to the threatened arrival of some 438 (predominantly Afghan Hazara) refugees on the Norwegian freighter the MV Tampa the previous month. Specifically, the incumbent Howard Government, in an urgent effort to retain power, demonised these refugees and worked as hard as it could to ensure they would not enter Australia.
What does this mean? It means that if you arrived by boat on, say, Christmas Island, prior to September 2001, you were entitled to be processed in Australia in accordance with our obligations under the 1951 Convention Relating to the Status of Refugees (Refugees Convention). However, if you had arrived just one day too late, you were not considered to have entered Australia at all – and the Government could send you to another country to be processed as a refugee.
That may sound pretty harsh – and in our view, it is. Especially in light of the fact that Australia, as a signatory to the Refugees Convention, has specific obligations to assess and admit arrivals if they are deemed to be refugees.
But, as those of you who have followed the progress of Australian refugee policy over the past decade will know, it actually gets worse.
In response to the 2001 changes, an increasing number of refugees started attempting to bypass those territories (such as Christmas Island) that were closer, but had been excised from the Migration Zone. To reach the Australian mainland is a much greater distance and a far more perilous journey, but to them it was their only chance at being settled in Australia – as they were entitled to be under the Refugees Convention.
The Australian Government, led by Julia Gillard at the time, formed a different view. On 30 October 2012, in response to the increased risks being taken by refugees desperate to reach Australia, they decided to excise all of Australia, including the entire mainland, from the definition of ‘Migration Zone’ in the Migration Act.
The practical effect of this change was dramatic for refugees – where before, they could at least be assured of a fair consideration of the merits of their protection claims, now they could, and would, be shipped to offshore processing camps, waiting for years for the slow wheels of bureaucratic process to turn.
Today, the situation remains the same. There is nowhere in Australia – onshore or offshore – that refugees can come by boat and have a chance at remaining in Australia, whether or not they are assessed as being refugees. If you arrive by boat, sadly, the ‘Migration Zone’ is not a migration zone at all.