Scott Morrison correct on 'illegal entry' of people without a visa

Updated

During the election campaign, asylum seekers have been referred to as "illegal arrivals" who "turn up illegally" on "illegal boats".

Opposition immigration spokesman Scott Morrison was asked about his use of the term at a National Press Club debate on September 3.

"I've always referred to illegal entry," Mr Morrison said.

"It's the same term that's used in Article 31 of the Refugee Convention, on the convention on people smuggling which defines illegal entry.

"People have illegally entered Australia when they've come without a valid visa."

The claim: Scott Morrison says people illegally enter Australia when they come without a valid visa and says the term 'illegal entry' is used in international conventions.

Scott Morrison says people illegally enter Australia when they come without a valid visa and says the term 'illegal entry' is used in international conventions. The verdict: Mr Morrison is correct. Based on the definition set out in the United Nations people smuggling protocol, people who have come to Australia without a valid visa have illegally entered the country. That is the case even though these people have not committed any crime, nor broken any Australian or international law.



Legal basis for entry to Australia

Entry into Australia is governed by the Commonwealth Migration Act 1958.

It makes a distinction between "lawful" and "unlawful" non-citizens. A lawful non-citizen is a foreigner who holds a valid visa, while an unlawful non-citizen is a foreigner who doesn't.

People entering Australia without a visa are not referred to as "illegal" in the Act.

Until September 1994, it did refer to "illegal entrants". This reference was removed in 1992 to simplify and clarify the existing categories on immigration status.

The Migration Act now says that a person who was classed as an illegal entrant before September 1994 became an unlawful non-citizen after that date.

In a provision dealing with people smuggling, the Act says a non-citizen has "no lawful right to come to Australia" if that person does not hold a valid visa.

Irrespective of these sections, it is not a criminal offence under the Act to arrive in Australia without a visa.

The description of foreigners previously as illegal and currently as unlawful in the Migration Act does not mean they have broken the law.

It is a description of their entry status and determines the way authorities process them.

Arriving without a visa can only result in criminal sanctions if there is some other offence involved such as falsifying a passport or forging a document.

Relevance of international law

Claims for asylum generally occur under the Convention Relating to the Status of Refugees adopted by the United Nations General Assembly in 1951.

The convention offers protection to those fleeing their country as a result of "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".

Mr Morrison correctly states that Article 31 includes the term "illegal entry".

It is used in the context of stating that parties to the convention cannot penalise refugees as a result of their "illegal entry or presence" as long as they present to authorities "without delay" and "show good cause for their illegal entry or presence".

The convention does not deal with how refugees should enter the convention country or whether a particular way of entering is "illegal" or otherwise. That is a matter for a country's own laws.

Mr Morrison's office referred ABC Fact Check to the United Nations Protocol against the Smuggling of Migrants, which was signed by Australia in 2001 and ratified in 2004.

The protocol defines "illegal entry" as "crossing borders without complying with the necessary requirements for legal entry into the receiving State".

The protocol in itself does not make anything illegal. Criminal offences for people smuggling, modelled on those required by the protocol, are included in both the Australian Commonwealth Criminal Code and the Migration Act.

Legal advisory panel A panel of eminent lawyers has agreed to advise ABC Fact Check on its work on legal issues.

For this fact check, the following lawyers were consulted: Dr David Bennett QC and Dr Gavan Griffith QC.

Meet the full panel.

Use of 'illegal' to describe asylum seekers

Experts contacted by ABC Fact Check say it is not appropriate to use "illegal" when specifically describing asylum seekers or refugees.

Professor Jane McAdam, director of the International Refugee and Migration Law Project at the University of New South Wales, says that "asylum seekers are not illegal under international law".

"By ratifying the Refugee Convention, governments agree precisely not to treat asylum seekers as illegal," Professor McAdam said.

Professor Andreas Schloenhardt, from the University of Queensland law school took a similar view, saying "the terms 'asylum seeker' and 'illegal' should not be used together or in the same sentence".

Use of 'illegal' to describe arrivals and entry

The situation is less straightforward when the term "illegal" is used more broadly.

Any person arriving in Australia without a visa, including an asylum seeker, is an "unlawful non-citizen" under Australian law.

Mr Morrison can rely upon the definition of "illegal entry" in the people smuggling protocol, which Australia signed and ratified, so long as he makes it clear that he is doing so.

However, experts warn that the use of the terms "illegal" and "unlawful" in this context is potentially misleading, as they are words usually applied to criminal acts.

Professor Schloenhardt told ABC Fact Check that it is acceptable to refer to people coming to Australia without visas (including those who are not asylum seekers) as "illegal immigrants".

However, on a practical level, he says that "illegal implies that a criminal offence has been committed, which asylum seekers have not, and for that reason it is preferable to use different vocabulary".

Ellen Hansen from the Canberra office of the UN High Commissioner for Refugees told ABC Fact Check that "the term 'illegal' is not one that UNHCR uses or encourages the use of in relation to refugees or asylum-seekers arriving without a visa".

Other terminology is available. Professor Schloenhardt said international organisations prefer to use the term "irregular migrant".

The verdict

Mr Morrison is correct.

Based on the definition set out in the people smuggling protocol, people who have come to Australia without a valid visa have illegally entered the country.

That is the case even though these people have not committed any crime, nor broken any Australian or international law.

Sources

Editor's note: This headline has been changed to reflect more accurately the conclusion in the fact check.

Topics: federal-government, federal-elections, scott-morrison, immigration, liberals, australia

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