In October 2013, Immigration Minister Scott Morrison instructed public servants to publicly refer to asylum seekers as ‘illegal’ arrivals.
Under international law, it is not illegal to seek asylum. Article 14(1) of the Universal Declaration of Human Rights provides that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’.
Article 31 of the Refugees Convention, to which Australia is a signatory, states that it is legal to enter a country for the purposes of seeking asylum. Article 31 further provides that signatory states should not impose penalties for entering illegally.
The Refugees Convention recognises a right to enter a country for the purposes of seeking asylum, regardless of how people arrive or whether they hold valid travel or identity documents.
Under the Migration Act 1958 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.
Under the Act an asylum seeker is an ‘unlawful non-citizen’ where they enter without a valid visa. However it is not a criminal offence under the Migration Act to arrive in Australia without a visa.
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Last updated 20 October 2014