Contemporary human rights issue: refugees and asylum seekers: HSC Legal Studies

What this dot point is asking

The syllabus lets schools choose the contemporary issue, and "treatment of refugees" and "asylum seekers" are both listed as examples. You must investigate a contemporary human rights issue and evaluate the effectiveness of legal and non-legal responses to the issue. Asylum seekers are one of the richest issues for evidence because they involve international law, the Constitution, the High Court, Parliament, the UN, NGOs and the media, and the law has changed repeatedly since 2023.

NESA's 2023 marking feedback cited the Migration Act 1958 (Cth) as relevant evidence for the 7-mark question on legal responses, and the 2024 question on state sovereignty is well suited to this issue.

The answer

The human rights at stake

• The right to seek asylum (UDHR article 14).
• Non-refoulement (Refugee Convention article 33; CAT article 3; ICCPR articles 6 and 7).
• Freedom from arbitrary detention (ICCPR article 9) and humane treatment (article 10).
• Children's rights, including detention only as a last resort (CRC article 37) and the best interests of the child (article 3).
• No penalty for irregular entry (Refugee Convention article 31).

A refugee is a person outside their country who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (article 1A(2)). An asylum seeker has applied for protection but has not yet been assessed. Seeking asylum is lawful, even when a person arrives without a visa.

The global context

UNHCR's Global Trends report (June 2026) recorded 117.8 million forcibly displaced people at the end of 2025, the first decrease in a decade, including 41.6 million refugees, 9 million asylum seekers and 68.7 million internally displaced people. Most refugees are hosted by low and middle-income countries neighbouring conflicts, not by wealthy states such as Australia.

International legal responses

• The Refugee Convention (1951) and Protocol (1967). Australia ratified the Convention in 1954 and the Protocol in 1973.
• UNHCR supervises the Convention, assists states and runs resettlement programs.
• Human rights treaties add protections: ICCPR article 9, CAT and the CRC.
• Treaty bodies. On 9 January 2025 the UN Human Rights Committee published two decisions involving 25 refugees and asylum seekers (24 of them unaccompanied children at the time) transferred to Nauru in 2014, finding that Australia remained responsible for their arbitrary detention because it exercised effective control over the regional processing arrangements. As one committee member put it, a state "cannot escape its human rights responsibility when outsourcing asylum processing to another State". The views are not legally binding.

Australian legal responses

Mandatory detention. Since 1992 the Migration Act 1958 (Cth) has required the detention of unlawful non-citizens (ss 189 and 196), regardless of age or risk, until they are granted a visa or removed.

Offshore processing and turnbacks. After the Tampa affair (2001), the "Pacific Solution" sent boat arrivals to Nauru and Manus Island. Offshore processing was revived in 2012. From 19 July 2013 people arriving by boat were told they would never be resettled in Australia, and Operation Sovereign Borders (September 2013) added military-led boat turnbacks.

• In Plaintiff M70/2011 v Minister for Immigration (2011) the High Court invalidated the proposed "Malaysia Solution".
• In Plaintiff M68/2015 v Minister for Immigration (2016) it upheld the Commonwealth's funding and participation in detention on Nauru.
• In Namah v Pato (2016) the Supreme Court of Papua New Guinea held that detention on Manus Island breached the PNG Constitution; the Manus centre closed in October 2017.

The last refugee left Nauru's processing centre in June 2023, but new boat arrivals have been transferred there since September 2023.

Temporary protection

Temporary protection visas were ended in 2023, allowing about 19,000 temporary visa holders to apply for permanent Resolution of Status visas, a significant improvement in security for refugees already in Australia.

NZYQ and its aftermath

Under Al-Kateb v Godwin (2004) stateless people who could not be removed could be detained indefinitely. On 8 November 2023, in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, a unanimous High Court overruled Al-Kateb, holding that detention of a non-citizen with no real prospect of removal in the reasonably foreseeable future was punitive detention by the executive, contrary to the separation of powers. More than 350 people have since been released (the "NZYQ cohort"), many with serious criminal records. Parliament responded within weeks with bridging visa conditions (curfews and electronic monitoring) and preventive detention orders for some serious offenders. In YBFZ v Minister (2024) the High Court struck down the curfew and monitoring conditions as punitive, and Parliament enacted replacement provisions.

Third-country removal and Nauru

In 2025 the government signed an agreement with Nauru to accept members of the NZYQ cohort, at a reported initial cost of $408 million followed by about $70 million a year, and Parliament passed laws removing procedural fairness requirements for decisions under third-country reception arrangements (the Senate Standing Committee for the Scrutiny of Bills questioned whether removing procedural fairness had been adequately justified). The first removal of a member of the cohort to Nauru was reported in October 2025. On 6 May 2026, in TCXM v Minister for Immigration and Citizenship [2026] HCA 13, the High Court upheld an interim arrangement to remove a long-term resident who could not be returned to Iran because Australia owed him protection obligations.

Non-legal responses

• NGOs: the Refugee Council of Australia, the Asylum Seeker Resource Centre, the Human Rights Law Centre (which brought or supported many test cases), Amnesty International and UNHCR advocacy.
• Media: reporting from Manus and Nauru, including leaked incident reports, shaped public debate; stories of individual families (such as the Tamil family from Biloela, granted permanent visas in 2022) mobilised community campaigns.
• Community responses: community sponsorship of refugees, local welcome programs and volunteer legal help.
• Professional bodies: medical and legal groups advocated for medical transfers and for children to be removed from Nauru.

Evaluating the responses

Judgement. International legal responses provide clear standards but are weakly enforced because Australia's sovereignty allows it to prioritise border control. Domestically, the High Court has been the most effective protector (Plaintiff M70, NZYQ, YBFZ), but Parliament has repeatedly legislated to restore or expand executive power, and the Court upheld offshore detention (M68) and the Nauru arrangement (TCXM). Non-legal responses have humanised individual cases and supported legal challenges, but have not changed the overall policy of deterrence.

In one sentence

The Refugee Convention protects people fleeing persecution, but Australia uses its sovereignty to deter arrivals through mandatory detention and offshore processing, so the High Court and UN bodies have provided important but limited checks, and responses since 2023 show both stronger judicial protection (NZYQ) and stronger executive powers (the Nauru arrangement).

Try this

Q1. Distinguish between a refugee and an asylum seeker. (2 marks)

• What the marker wants. The Convention definition and the status of a person awaiting a decision.

Q2. Explain the significance of NZYQ (2023) for the rights of non-citizens in detention. (5 marks)

• What the marker wants. Al-Kateb overruled, the separation of powers reasoning, the consequences (releases, new laws, YBFZ) and a judgement.

Q3. Evaluate the effectiveness of legal and non-legal responses to asylum seekers. (7 marks)

• What the marker wants. International and domestic legal responses, NGOs and media, with current evidence and criteria.