Since the end of August, Australia has been moving to shut its borders to asylum seekers and refugees who arrive without valid visas or papers. In October the government passed new Border Control Legislation, which created an uproar among refugee advocacy groups here and internationally. The legislation places certain Australian territories such as Christmas Island off bounds for immigration purposes and only grants asylum seekers temporary visas, making it extremely difficult for them to claim refugee status. Refugee advocates say that the new legislation and the government's stance are harsh and contrary to international humanitarian conventions, including the 1951 Refugee Convention, to which Australia is a signatory.

The Australian government says it is seeking to ensure bona fide refugees access to asylum, but international refugee advocate groups say that the new law violates the rights of refugees to due process.

At the end of August a Norwegian freighter called the Tampa rescued 432 asylum seekers from a sinking Indonesian ferry bound for Australia. What ensued was a legal battle between Norway, Australia and Indonesia over who was obligated to take in the asylum seekers.

Maritime law was unclear as to whether the Tampa should have returned to Indonesia or gone on to Christmas Island. Australia's obligations under the Refugee Convention were less clear in this case.

"The Refugee Convention technically says you can't expel or return people to the frontiers of territories where their lives or freedom will be threatened," said Jana Mason, Policy Analyst at the US Committee for Refugees. "Under the absolute letter of the law, Australia was just pushing them back into international waters, but most advocates would say it violated the spirit of the convention."

The standoff was finally resolved when the island nation of Nauru and New Zealand offered to take in the asylum seekers for processing. New Zealand has said it will process the asylum seekers under its own laws, while Australia or the UNHCR will process those in Nauru.

The Tampa incident, as it is called here, led to a drastic change in the government's policy toward "boat people," the name given to refugees arriving by sea. Philip Ruddock, the Minister for Immigration and Multicultural Affairs, pushed for new Border Control Legislation to reduce Australia's obligation to process these arrivals as refugees.

In addition to the excising of certain territory for immigration purposes, people who "refuse to prove their identity by destroying their documents en route" to Australia will also be refused refugee status and human smugglers will face long prison terms under Australian law.

Ruddock justified the bill as a means to ensure Australia's sovereignty in deciding who enters its borders and who can stay in the country. "In recent times, the number of people entering Australia illegally meant we had no choice but to divert humanitarian program places away from our offshore program, which helps people identified as being in need of resettlement by the UNHCR," he said in a statement. "We simply could not help as many of them as we wanted to while we had this influx of people who had paid people smugglers to reach our shores."

Some refugee advocates have referred to this new legislation as "draconian" and "narrow" in its scope. "We should be emphasizing international humanitarian protection," said Patricia Garcia, a Human Rights Lecturer at the University of Sydney who has been involved with refugee work in Afghanistan. "Refugees are not a migration issue, but they fall under the jurisdiction of the Immigration Ministry, which to me is part of the problem. This bill is very much a political response, rather than a legal response to improve the situation of refugee protection."

Mason agrees with these concerns. "International refugee law is separate from immigration," she said. "When refugees present themselves they have to be treated a certain way. They can't just be sent home without processing; they need to be given the chance to present their case as refugees."

According to the Department of Immigration, Australia has a quota of 12,000 "humanitarian entrants," which includes a total of 8,000 spaces allocated for refugees. The offshore program, also called a resettlement program, processes refugees in the country of origin or in host countries such as Pakistan before granting them asylum. The onshore program processes unauthorized entries, most of whom arrive via sea. While each of these programs has 4,000 allocated spaces, they are linked; an increase in asylum grants in one category removes places from the other. This happens even though the offshore program grants permanent visas while the onshore program grants only temporary visas. There have been repeated calls to the Australian government from refugee advocates to de-link the two programs, but to no avail.

The new Border Control Legislation is aimed at deterring onshore asylum applicants and encouraging asylum seekers to go through the official offshore programs. Unfortunately, according to Mason, these programs often have waiting periods of years and refugees have no way to access the offices that administer the services. There is no Australian embassy in Afghanistan and the offices in Islamabad must serve more than two million Afghan refugees, many of whom are in camps hundreds of miles away.

"Governments like a nice, neat, orderly program," said Mason. "It's messy when people just show up and seek asylum. It feels like a breach of security. But you can't always have an orderly process, and that's why most countries have onshore programs."

Article 31 of the Refugee Convention clearly states that refugees should not be judged on the basis of how they enter a country, but rather on the legitimacy of their claims. According to refugee advocates Australia's move to undercut its onshore program and build barriers to asylum seekers arriving by sea violates the spirit of the convention even as it tries to fight the criminal aspect of human smuggling.

"Asylum seekers arriving by boat should be given a fair chance to pursue their claim," said Panos Moumtzis, spokesperson for UNHCR in the US. "It's a very basic human rights principle of respecting people who are persecuted in their country of origin. And these people should be given a chance to pursue their claim to asylum."

Simultaneously Australia has "really taken international leadership on the smuggling issue," said Mason. "Unfortunately, the leadership has been one sided. Smuggling must be dealt with, but you still have to keep open a safety valve for people who need to escape. You can't penalize them because they had to rely on irregular means to escape."

According to Mason, in the long term the global refugee problem has to be dealt with as a multi-national issue. One of the most urgent requirements, she said, is funding for UNHCR, which runs most of the refugee camps in Pakistan and Iran. Simultaneously, she continued, there have to be viable and efficient resettlement programs in place and more countries must be encouraged to open their borders for resettlement. Currently only a handful of countries including Australia, the US, the Nordic countries and some African countries run resettlement, or offshore, programs. Finally, said Mason, the international community has to realize that there will always be people who cannot afford to wait for the long process involved in gaining asylum from overseas.

"Some people are always going to chose alternate routes," she said. "While we're dealing with the root causes we have to allow for other avenues. It is legitimate, if not humanitarian, to detain people without papers to assess their claims. It isn't acceptable to send people back without due process."

Wendy Young, Washington liaison for the Women's Commission for Refugee Women and Children, stressed the need for correct processing. "Applicants should be adjudicated and accepted if they're true refugees," she said. "Of course, countries do have the right to return refugees who are rejected, but the adjudication must be in compliance with basic due-process principles. There must be an objective decision maker, a possibility for appeal and adjudication with the assistance of agencies that can help the asylum seeker, including the UNHCR and lawyers in these countries."

According to its Department of Immigration, Australia takes in fewer than 12,000 refugees a year. In comparison with situations like Tanzania, where there is now one refugee for every 76 Tanzanians, this is a miniscule number, the advocates say. They also fear that this change in Australian laws could set a dangerous precedent for domestic law in asylum countries around the world, especially because of heightened security and distrust in the wake of the September 11 attacks in the United States.

"Australia knows that within Afghani and Iraqi asylum seekers, 80-90 percent are real refugees and these are the majority of the people on the boats," said Mason. "So how in good consciousness can they send them back to the high seas in a region where most countries don't have a system for protecting them?"

She said that if countries like Australia, which has historically been welcoming to asylum seekers, shut down their borders, the future could be very bleak for the hundred of thousands of refugees desperate to flee persecution.