Australia’s Visa Regime and the Right to Leave Any Country: Fostering Irregular Migration and Harm

Destination states do not wait for refugees, asylum seekers and migrants to arrive at their borders. Rather, visa requirements are in place to proactively prevent certain non-nationals leaving the state they are in and their arrival at their borders.

Visas represent a long-standing mechanism to control the movement of persons. Already in the 1920s, the United States (US) required tourists and immigrants to apply for visas at consular posts abroad.¹ Visas are backed up by carrier sanctions, which penalize commercial airline and transport operators for transporting undocumented migrants or those without permission (such as a visa) to enter the state they wish to travel to. To further combat irregular migration, destination states also post immigration and airline liaison officers (ALOs) at major transport hubs to advise airlines on whether to let someone travel.

Visa regimes form part of the arsenal of tools utilized by destination states around the world, from Australia to the US and European Union member states, to thwart the arrival and admission of ‘unwanted’ non-nationals. This strategy is known as externalized migration control, which involves measures from detention to interceptions and pushbacks at land borders and at sea, information deterrence campaigns, as well as destination states equipping and financing states of origin and transit to perform migration control on their behalf (see for example Italy and Libya; Australia and Indonesia).²

Countries usually impose visa requirements on all nationals of specified states, subject to some exceptions for diplomats and similar persons. Australia, like many states, has in place mandatory visa regimes for nationals of refugee-producing states. However, Australia is unique in that it is the only state in the world to impose a universal visa requirement on non-citizens. All non-Australian citizens, except for New Zealanders, must be granted a visa prior to arrival. Nonetheless, nationals of certain states, such as Canada, the US, most European and some Asian countries, can apply for a quick and easy eVisitor or Electronic Travel Authority online.³

Visa requirements and visa refusals, backed up by carrier sanctions and ALOs, can prevent individuals from leaving the country they are in and inhibit access to asylum through safe, legal means of travel. It follows that visa regimes may interfere with and violate the right to leave, as well as the right to seek asylum. The right to leave is enshrined in most major human rights instruments, including the Universal Declaration of Human Rights (Article 13(2)) and the International Convention on Civil and Political Rights (Article 12(2)) (ICCPR), as well as in regional human rights instruments, such as the European Convention on Human Rights (Article 2(2) of Protocol 4). Article 12(2) of ICCPR, binding on Australia as a State Party, provides that:

Everyone shall be free to leave any country, including his own.

The right is afforded to everyone, meaning that refugees, asylum seekers, internally displaced persons, and ‘irregular’ migrants have the right to leave. The right to leave is not absolute; it can be restricted but only if necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and if provided by law and consistent with other human rights enshrined in the ICCPR.

The long-standing existence and widespread usage of visas have made them one of the most unchallenged migration controls, for it is generally accepted that states have the right to control the entry of non-nationals onto their territory.⁴ Furthermore, unlike other externalization methods, visas are a relatively invisible control mechanism;⁵ those prevented from travelling are out of sight and out of mind. This makes finding a violation of the right to leave difficult.

However, this does not mean that visa regimes are insulated from challenge. In considering their compliance with the right to leave, issues clearly arise from the arbitrary, discretionary nature of visas, the difficulty or inability to challenge refusals, and the lack of transparency about which states end up, and remain, on visa ‘blacklists’. For example, all individuals applying for an Australian visa are subject to a character test, affording the Minister broad discretionary power in deciding whether to issue the visa.

Furthermore, visas allow destination states to pre-screen and prevent passengers who might claim asylum (‘asylum risk’) or are classified a security risk from travelling. Such profiling reinforces discrimination, exclusion and immobility.⁶ For example, Australian Border Force officers (ABF) have been accused of both targeting women from Saudi Arabia whom they suspect will apply for asylum, blocking them from entering on arrival at Australian airports, and preventing Saudi women from boarding flights bound for Australia. Recently, there have also been reports of Australian ALOs preventing a group of Malaysian women from flying to Australia at Kuala Lumpur International Airport despite having had their tourist visas approved.

According to the United Nations Human Rights Committee, there is a clear violation of the right to leave if restrictions are discriminatory.⁷ The conduct of ABF officers and ALOs abroad highlights how visa regimes may discriminate against individuals on grounds such as race, religion, class, and gender, as well as profiling on the basis of asylum risk.⁸

Visas, carrier sanctions and the posting of ALOs have been normalized in the global (im)mobility regime. However, it must be acknowledged that visa regimes contribute to irregular migration and the precarious, deadly flight of those seeking refuge. Asylum seekers and refugees cannot simply get a visa and board a plane; they are pushed into irregular and dangerous modes of travel, such as by boat. This not only inhibits the individual’s right to leave and to seek asylum under international law, but also threatens their right to life, may lead to smuggling and trafficking, and a host of other harms.

If Australia or any country is serious about “stopping the boats” and reducing irregular migration, they must facilitate legal routes to safety, including increasing resettlement numbers, promoting family reunification and humanitarian visas, as well as addressing the causes of irregular migration, including their own visa regimes.

References

Emilie McDonnell Member since September 18, 2019

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Emilie McDonnell is a DPhil in Law candidate and the 2016 Tasmanian Rhodes Scholar. Her research focuses on protecting the right to leave and related human rights of asylum seekers, refugees and other migrants when migration control is conducted extraterritorially and has been outsourced to states of origin and transit, private actors and international organisations. She is supervised by Professor Cathryn Costello and Professor Miles Jackson. Emilie completed the MPhil in Law in 2018 and the BCL with Distinction in 2017 at University College, Oxford. She holds a Bachelor of Arts (Criminology) and a Bachelor of Laws with First Class Honours in Law from the University of Tasmania. Emilie is also a qualified lawyer from Australia and an Adjunct Researcher at the University of Tasmania School of Law. In 2013, she co-founded and was a Director until 2016 of Tasmania’s first community legal centre for refugees, asylum seekers and humanitarian entrants, the Tasmanian Refugee Legal Service. She is a Research Assistant at the Oxford Human Rights Hub, a Co-Convenor of the Refugee and Migration Law Discussion Group, and a Student Resident at the Bonavero Institute of Human Rights. She is also a Research Affiliate at the Refugee Law Initiative, an Associate Member of the Centre for the Study of Global Human Movement, University of Cambridge, and a Member of the Asia-Pacific research group and Emerging Scholars Network at Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Sydney. She has tutored FHS undergraduates in Medical Law and Ethics and taught on several summer school programmes in Oxford. She recently coached the winning Oxford team at the European Human Rights Moot Court Competition, Strasbourg April 2019. Emilie was awarded the 2019 Samuel Pisar Travelling Fellowship in Human Rights from the BIHR to enable her to undertake an internship with the Department of Legal Affairs at the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) in Jerusalem between July-October 2019.

Contributor

1. John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State (Cambridge University Press 2000); Aristide R Zolberg, ‘Global Movements, Global Walls: Responses to Migration, 1885–1925’ in Gungwu Wang (ed), Global History and Migrations (Routledge 2018) 852.
2. See generally Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press 2011); Maarten den Heijer, Europe and Extraterritorial Asylum (Hart Publishing 2012); Bill Frelick, Ian M Kysel and Jennifer Podkul, ‘The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants’ (2016) 4 Journal on Migration and Human Security 190, 206-09; Violeta Moreno-Lax and Mariagiulia Giuffré, ‘The Rise of Consensual Containment: From “Contactless Control” to “Contactless Responsibility” for Forced Migration Flows’ in Satvinder S Juss (ed), Research Handbook on International Refugee Law (Edward Elgar 2018) (forthcoming).
3. Migration Regulations 1994 (Cth) sch 2, subclasses 601, 65.
4. See among many Nishimura Ekiu v US 142 US 651, 659 (1892); Samuel Lichtensztejn v Uruguay, Communication No 77/1980 (31 March 1983) UN Doc CCPR/C/OP/2 [8.3]; Abdulaziz, Cabales and Balkandali v UK (1985) 7 EHRR 471 [67]; R v Immigration Officer at Prague Airport ex parte Roma Rights Centre and ors (2004) UKHL 55 [19];  Hirsi Jamaa and ors v Italy App no 27765/09 (ECtHR, 23 February 2012)[113].
5. James C Hathaway, ‘The Emerging Politics of Non-Entrée’ (1992) 91 Refugees; Thomas Gammeltoft-Hansen and James C Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235, 244-46.
6. See Thomas Spijkerboer, ‘The Global Mobility Infrastructure: Reconceptualising the Externalisation of Migration Control’ (2018) 20 European Journal of Migration and Law 452.
7. Human Rights Committee ‘General Comment No 27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 [18].
8. See eg R v Immigration Officer at Prague Airport ex parte Roma Rights Centre and ors (2004) UKHL 55 [38], [97]; Harsha Panduranga, Faiza Patel and Michael W Price, Extreme Vetting & the Muslim Ban (Brennan Center for Justice 2017).