Australian migration zone

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The Australian migration zone refers to the parts of Australian territory where a non-citizen must hold an Australian visa to legally enter and remain but still could apply for a protection visa on arrival. Prior to 2001, the Australian migration zone consisted of the mainland, plus some external territories, at the mean low water mark.[1] In September 2001, the Migration Amendment (Excision from Migration Zone) Act 2001[2] and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001[3] excised certain external territories from the migration zone for purposes relating to unauthorised arrivals. The effect of this change was to limit the ability of "offshore entry persons" to make valid visa applications. The territories excised included Ashmore Island, Cartier Islands, Christmas Island, and Cocos Islands.

On 30 October 2012, the Labor party resolved to excise the entire Australian mainland from the migration zone, in order to remove any incentive for asylum seekers traveling from Indonesia to try to reach the mainland instead of the previously excised territories which are closer to Indonesia.[4] The legislation to excise the mainland itself from the migration zone was passed by Parliament on 16 May 2013.[5][6] Before the excise, asylum seekers who reached the mainland by boat could not be sent offshore to Australian immigration detention facilities on Nauru or Papua New Guinea's Manus Island for immigration processing.[7]

Unauthorised arrival[edit]

Main article: Asylum in Australia

In an excised area, an unauthorised arrival has no right to apply for a visa. Asylum seekers who land in an excised area of Australian territory may apply for refugee status with the UNHCR. However, Australia has no obligation to grant them a visa to settle permanently in Australia (as opposed to temporary protection) and they have no recourse to Australian courts.

The Acts also included the powers to move unauthorised arrivals to another country where their claim for protection could be considered. These changes allowed for thousands of asylum seekers to be moved to immigration detention facilities on Christmas Island, Nauru, and Manus Island.

In subsequent years the government excised many islands, sometimes attempting to do so retroactively after asylum seekers had already landed.

The excising of islands from the Australian migration zone remains a very controversial aspect of Australian immigration policy. Refugee advocates argue that Australia is not meeting its obligations under international law to protect refugees. This was not accepted by the Howard Government, which contended that international law obliged Australia to provide temporary protection only and not necessarily a permanent settlement.[citation needed]

However, the Rudd Government abolished the temporary protection visa scheme in 2008. The practice of diverting boat-borne arrivals to Christmas Island remained, effectively disallowing judicial review.[8] In 2010, a landmark High Court ruling found that the processing procedures on Christmas Island were unlawful and unconstitutional.[9] On 16 May 2013, Australian Senate passed a bill to excise entire Australian mainland from its migration zone.[5]

Effect of excision on sovereignty[edit]

At times there has been confusion over the effect on Australia's sovereignty over the excised area. Various constitution authorities have voiced the opinion that excising territory from the migration zone does not affect Australia's sovereignty.

The "excision" of areas from the migration zone has no impact on the rights of Australian citizens and permanent residents to travel to and remain in that area, and no documentation is required to travel between these areas and the rest of Australia. Nor is there any impact on the rights of those non-citizens who arrive in these territories with valid visas.

For example, the territory of Norfolk Island, although under Australian sovereignty, is entirely outside the migration zone, as are the uninhabited territories of Heard Island and McDonald Islands (in the Southern Ocean) and the Australian Antarctic Territory.

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