A/HRC/35/25/Add.3 A. A punitive approach to unauthorized maritime arrivals 34. National laws must be brought into line with the country’s international obligations. In this regard, the Special Rapporteur refers specifically to section 197C of the Migration Act, in which it is established that “an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 (of the Migration Act 1958) arises irrespective of whether there has been an assessment, according to law, of Australia’s nonrefoulement obligations in respect of the non-citizen”. He remains deeply concerned that this law is a violation of the international principle of non-refoulement, as not to carry out an individual assessment which offers a person the opportunity to submit an asylum claim is in contravention of the country’s international human rights and humanitarian obligations. Australia must guarantee that all asylum claims are thoroughly examined through an individual assessment mechanism and that the persons concerned have a real opportunity to effectively challenge any adverse decisions adopted concerning their claims. Pushbacks and screening processes at high sea do not meet these requirements. 35. The principle of non-refoulement bars States from returning asylum seekers not only to countries where they may be at risk of persecution, but also to countries where there is a risk of “chain deportation” to the country of feared persecution. B. Non-refoulement 36. The Australian authorities have put in place a very punitive approach to unauthorized maritime arrivals, with the explicit intention of deterring other potential candidates. Unauthorized maritime arrivals are treated very differently from unauthorized air arrivals, especially when they result in protection claims. This distinction is unjustifiable in international refugee and human rights law and amounts to discrimination based on a criterion — mode of arrival — which has no connection with the protection claim. 37. At all levels, unauthorized maritime arrivals face obstacles that other refugees do not face, including arbitrary, mandatory and prolonged detention periods, transfer to regional processing centres, indefinite separation from their family, restrictions with regard to social services, and no access to permanent residence and citizenship. They experience their treatment as harsh punishment for a crime not committed. Crossing borders irregularly is at most an administrative offence and cannot be considered a crime, especially when done with a view to requesting international protection. 38. This treatment is predicated on the idea that it sends a message to the smugglers and the potential candidates for maritime smuggling operations. However, it is a fundamental principle of human rights law that one person cannot be punished only for the reason of deterring another. C. Visa refusal and cancellations 39. The Migration Act creates broad and punitive provisions in relation to visa refusal and cancellation. The grounds for considering a refusal or cancellation of a visa include previous criminal activity in any country, providing incorrect information in a visa application, and associations with people or groups who have been or may have been involved in criminal conduct. 40. The inclusion of criminal offences from abroad with no corresponding safeguard to undertake due diligence in relation to the actual circumstances of each case risks penalizing and/or resulting in the detention of people who have been charged or prosecuted criminally for acts relating to a legitimate exercise of their human rights. People could be fleeing persecution from countries where homosexuality or peaceful assembly and association are criminalized, or where the independence of the judiciary is not respected. Additionally, this measure risks further misidentifying victims of trafficking and endangering their right not to be prosecuted for violations of immigration laws or for the activities they are involved in as a direct consequence of their situation as trafficked persons. 9