Obstacles on the Road to Protection: Assessing the Treatment of Sex Trafficking Victims Under Australia's Migration and Refugee Law

Abstract:     
In recent years both the international community and the Australian Government have renewed efforts to address the problem of sex-trafficking. This reflects the growing recognition that effectively addressing the issue of trafficking requires more than a criminal law enforcement or immigration compliance approach; it also requires an acknowledgement of the human rights and protection needs of trafficking victims. From this perspective, the article critically examines Australia's response to the protection needs of persons trafficked to the country for the purposes of sexual enslavement in light of Australia's obligations under international law. The article first reviews recent amendments to the Migration Act 1958 (Cth) which provide some respite from mandatory detention and deportation to victims of trafficking who are willing and able to assist in the prosecution of sex-traffickers. While in some respects a positive development, this analysis reveals serious deficiencies in the regime. The article then considers the manner in which Australia has offered protection to trafficking victims pursuant to its existing obligations under the Convention relating to the Status of Refugees. The major part of the article is dedicated to an examination of the way in which Australian courts and tribunals have assessed refugee claims of trafficked women. While foreign jurisprudence and guidance from the United Nations High Commissioner for Refugees demonstrate that the Refugee Convention can clearly encompass trafficking-related claims, it will be argued that, in Australia, art 1A(2) continues to be interpreted and applied in a way that overlooks how gender intersects with social, cultural and economic norms to oppress women and subject them to discriminatory harm.

Number of Pages in PDF File: 47

Keywords: Australian Government, sex-trafficking, immigration compliance, human rights and protection, Migration Act 1958, United Nations High Commissioner for Refugees, Refugee Convention

JEL Classification: K3, K33, K39, K30

Accepted Paper Series