When it comes to border protection and stopping illegal immigrants from flooding our borders, this government is nothing short of a failure…
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.”
Australia, like many other countries, has signed the Refugee Convention 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. 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.
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. 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. Most of these people are tourists from western countries.
In 2008-2009, the Department of Immigration and Citizenship (DIAC) estimated that there were 48 700 people residing in Australia unlawfully. In reality, DIAC located 11 428 people who had either overstayed their visa or breached their visa conditions. In contrast, during the same period, only 1 033 asylum seekers arrived by boat. Since 1 July 2009, 4 916 people seeking asylum in Australia have arrived by boat. 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.
 Commonwealth, Parliamentary Debates, Senate, 13 May 2010, 2847 (Senator Steve Fielding).
 Universal Declaration of Human Rights, General Assembly res. 217A (III), U.N. Doc A/810 at 71 (1948), art 14.
 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).
 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.
 Janet Phillips, Asylum seekers and refugees: what are the facts? (2010) Parliament of Australia: Parliamentary Library <http://www.aph.gov.au/library/pubs/BN/sp/AsylumFacts.htm#_Toc260732952> at 2 August 2010. See also, Refugee Council of Australia (RCOA), Australia’s refugee program: frequently asked questions <http://www.refugeecouncil.org.au/arp/faqs.html> at 4 August 2010. See also R v. Uxbridge Magistrates Court and Another, Ex parte Adimi,  EWHC Admin 765.
 Department of Immigration and Citizenship, Overstayers and other unlawful non-citizens, Fact Sheet No. 86 <http://www.immi.gov.au/media/fact-sheets/86overstayers-and-other-unlawful-non-citizens.htm> at 4 August 2010.
 Department of Immigration and Citizenship, Population Flows Immigration Aspects 2008–09 (2010) 75 <http://www.immi.gov.au/media/publications/statistics/popflows2008-09/pop-flows.pdf> at 14 August 2010.
 Department of Immigration and Citizenship, Annual Report 2008-09 (2010) 122 <http://www.immi.gov.au/about/reports/annual/2008-09/pdf/outcome1.pdf> at 14 August 2010.
 Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia since 1976’ (2010) Background Note, Appendix A <http://www.aph.gov.au/library/pubs/bn/sp/BoatArrivals.htm> at 14 August 2010.