A review of the Refugee Determination Process for Asylum Seekers who arrived by plane in the context of Australia's exclusionary narrative

This thesis addresses the human and sovereign rights of plane arrival asylum seekers in Australia. Since its inception, the Australian Federal Parliament has exercised its power to create exceptions to the law that exclude some people from gaining permanent residency and citizenship. This discriminatory practice undermines the power of Australian courts to protect the inalienable human rights of all sovereign human beings, regardless of their country of citizenship. Some of the tensions between the Federal Parliament and the Court regarding protection of asylum seekers are analysed. The basis for analysis is an in-depth and robust qualitative study of 20 plane arrival asylum seeker cases. All of the arrivals failed to gain asylum in the first stage of the process. The main focus is to examine the problem of achieving fair assessments of this cohorts protection claims and the human rights abuses suffered during this process. The reasons as to why they were not granted protection is assessed and interpreted in the context of international and domestic law. Particular refugee determination decisions are analysed in detail. This is followed by a forensic qualitative examination of tribunal review decisions and an examination of the way Ministerial requests for humanitarian consideration were declined. Legislation affecting court outcomes is also examined. Immigration department correspondence with asylum seekers and their advocates was included in the analysis where appropriate. The findings of this study demonstrate the systemic administrative practice of exclusion of some plane arrival asylum seekers from 1997 to 2009 regardless of the merits of their protection needs. Ways in which the assessment process could be made more just are presented. The thesis concludes that Australias Federal Parliament is failing in its duty to work co-operatively, but at arms-length with independent bodies, to establish appropriately fair policies for determining refugee status. Prior to and since the Parliamentary Human Rights Committee was established in 2012 asylum seekers arriving by plane have continued to suffer serious human rights breaches. Social justice requires an essential independent Human Rights scrutiny of legislation and refugee determination and this thesis highlights the failure of the system to do this