Frequently Quoted Inaccuracy #1: Australia is being flooded by illegal immigrants

When it comes to border protection and stopping illegal immigrants from flooding our borders, this government is nothing short of a failure…[1]

Senator Steve Fielding, 13 May 2010
(during the Senate debate on the Anti-People Smuggling Bill)

There is no such thing as an illegal asylum seeker. Arriving by boat to Australia for the purpose of seeking asylum is not illegal under Australian law, and is a right protected by international law. Article 14 of the Universal Declaration of Human Rights states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”[2]

Australia, like many other countries, has signed the Refugee Convention[3] and made a commitment to protect refugees. Specifically, Australia must give people who arrive on our shores without official authorisation or documentation the opportunity to prove their refugee status and to remain in Australia until the authorities have assessed their claim.[4] It is often extremely difficult for asylum seekers escaping their country of origin to obtain official documentation and travel by regular methods, doing so may bring them to the attention of authorities, the very authorities that may be responsible for their persecution and ill treatment.[5]

The term ‘illegal’ applies, appropriately, to those people who enter Australia without an acceptable visa who are not seeking protection, or those who overstay their visas.[6] This class of people should not to be confused with ‘asylum seekers’; they are two distinct and very different categories of people. The majority of people who are not Australian citizens and who reside in Australia without permission are primarily those who overstay their visas.[7] Most of these people are tourists from western countries.[8]

In 2008-2009, the Department of Immigration and Citizenship (DIAC) estimated that there were 48 700 people residing in Australia unlawfully.[9] In reality, DIAC located 11 428 people who had either overstayed their visa or breached their visa conditions.[10] In contrast, during the same period, only 1 033 asylum seekers arrived by boat.[11] Since 1 July 2009, 4 916 people seeking asylum in Australia have arrived by boat.[12] Though this figure represents a significant increase from the previous year, it is minor compared to the people estimated to be residing in Australia unlawfully.

[1] Commonwealth, Parliamentary Debates, Senate, 13 May 2010, 2847 (Senator Steve Fielding).

[2] Universal Declaration of Human Rights, General Assembly res. 217A (III), U.N. Doc A/810 at 71 (1948), art 14.

[3] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, art 33 (entered into force 22 April 1954), incorporated by reference in the United Nations Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, art 1(1) (entered into force 4 October 1967).

[4] See for example, Alice Edwards, ‘Human Rights, Refugees, and The Right ‘To Enjoy’ Asylum’ (2005) 17 International Journal of Refugee Law 293, stating: ‘Articles 1 and 33 [of the Refugee Convention] read together place a duty on State parties to grant, at a minimum, access to asylum procedures for the purpose of refugee status determination’ at 301.

[5] Janet Phillips, Asylum seekers and refugees: what are the facts? (2010) Parliament of Australia: Parliamentary Library <> at 2 August 2010. See also, Refugee Council of Australia (RCOA), Australia’s refugee program: frequently asked questions <> at 4 August 2010. See also R v. Uxbridge Magistrates Court and Another, Ex parte Adimi, [1999] EWHC Admin 765.

[6] Department of Immigration and Citizenship, Overstayers and other unlawful non-citizens, Fact Sheet No. 86 <; at 4 August 2010.

[7] Department of Immigration and Citizenship, Population Flows Immigration Aspects 2008–09 (2010) 75 <; at 14 August 2010.

[8] Ibid.

[9] Department of Immigration and Citizenship, Annual Report 2008-09 (2010) 122 <; at 14 August 2010.

[10] Ibid.

[11] Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia since 1976’ (2010) Background Note, Appendix A <; at 14 August 2010.

[12] Ibid.



Filed under Frequently Quoted Inaccuracies (FQIs)

10 responses to “Frequently Quoted Inaccuracy #1: Australia is being flooded by illegal immigrants

  1. Anne Maureen Scarff

    Thank you so much for providing this source of unbiased information. I had been doing some research myself just to counter the flood of misinformation in the popular press so it is a huge advantage to have a reference point for the gloom and doom merchants.
    Congratulations to all involved. It is a delight to see university students engaged and involved with the world outside.

  2. James Christie

    Surely if they were genuine asylum seekers / refugees then they would go to the nearest safe country, to the country they are fleeing from, however what we see here and what annoys most people in Australia is that they pick and choose which country they would like to live in, even if that country is on the opposite side of the world. !! If they want to come and live here then they should go through the legitimate process like everyone else! Instead they travel half way round the world and then try and claim asylum. This is wrong!

    • Dr Peter Billings

      James, thanks for your post, you raise an important issue about ‘forum shopping’ and related questions about what motivates people to leave their country of origin and what prompts them to apply for refugee protection in a particular country, such as Australia. Your enquiry about why a ‘genuine’ refugee would not seek protection in an adjacent state (or one in closer proximity to their countyr of origin) is an issue that will be addressed – with reference to the evidence-base – later this week via a blog about push/pull factors.

    • Ellen

      I suppose it’s difficult for people to go through legitimate processes when they are fleeing persecution. I know if it were me, I would do anything and pay anyone any amount of money to get away and try to start a new life. Only genuine refugees are accepted into Australia and those that aren’t are sent back so it shouldn’t matter where they are from or how far they’ve come.

    • Sean from Townsville

      Wow this must be the worst law class in Australia under the “guidance” of a leftie academic.

      Heres some light reading for your class… straight from the government source.

      Heres some highlights:

      “Migration Reform Act 1992 – Extended mandatory detention from a specified group to all who did not hold a valid visa. The Act established a new visa system making a simple distinction between a ‘lawful’ and ‘unlawful’ non-citizen. Under Section 13 of the Act, a migration officer had an obligation to detain any person suspected of being unlawful.”

      Now thats AUSTRALIAN Law. You enter this country without a valid Visa and you become an illegal unlawful entrant. The spin from the left is that it’s not illegal to claim asylum while completely ignoring the method of getting here. Bit like saying you can claim asylum at one of our embassy’s so it’s okay to drive a John Deere tractor through the front gates to get there.

      Perhaps your law class should get back to studying law… no matter how ideologically inconvenient, rather than inventing their own.

      • Elizabeth Mathews


        Thanks for your contribution, and you certainly point out some important arguments that we’re hoping to address over the next few weeks. Just to give you a faster response, I’d just like to set out a very brief reply here.

        In section 14 of the Migration Act 1958 (Cth), someone who is not a citizen or a permanent resident and who does not hold a valid visa is called an “unlawful non-citizen”. This is, therefore, the term used in the Act for those who come to Australia seeking asylum without a valid visa. It is important to understand that this is a label, and not a definition.

        This label does not mean that it is against Australian law for people to seek asylum in Australia, by boat or otherwise. It is not a crime, nor are the asylum seekers punished for doing so (mandatory detention being, according to the government and the High Court of Australia, purely administrative). Therefore, the term “illegal immigrant” is misleading, as it is not actually against the law for people to seek asylum in Australia. That is the inaccuracy we are hoping to correct.

        I hope that helps to clear up a few things, and if you’d like any more information, please feel free to comment again.

  3. Ellen

    This is such a great idea!! There is far too much misinformation about this issue in the popular media and people need to realise that it’s not the disaster that our politicians and the media make it out to be. Congratulations to everyone involved for taking the initiative and adding some balance to the debate

  4. I agree with Paul above,
    In that if Assylum seekers were truely after simple protection they’d stop at the closest ‘safe’ country.
    I recognise that there are certain push/pull mechanisms at work, but the big pull factor here is government assistence, and they can later get the rest of their families over here.
    Truely, if they were just after non persecution then they’d stop at the closest safe country, rather, what we see here are people seeking “assylum with benefits”.
    So what gets me is they travel all this dangerous way, to get benefits which aren’t offered in other “safe” country along the way.
    So I put it that these boat people are actually “benefit seekers”
    Thanks for your site.

  5. Sorry to be a pain again,
    But we here about the rights being protected by international law
    ‘Article 14 of the Universal Declaration of Human Rights states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”[2]
    What would happen if Australia refused to abide by this law, I’m sure that China, Iran, north korea etc aren’t abiding by it.

  6. tony

    So basically your one of these assholes that want to see australia turned into india or some shit hole muslim country. Just look at what has happened to the uk for god sake! You don’t know what you have got till it’s gone. And trust me these people will take our australian , British, European Christian moderate culture away from us.

    Come to perth and speak to all the brits who have escaped the uk because now they feel like a minority.

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