Catherina Toh

This policy position has resulted in the mandatory detention of the Sri Lankan asylum seekers not in Australia, not even on Christmas Island (excised from Australia for immigration purposes), but in Nauru. And for any of the Sri Lankans found to be genuine refugees, the Government intends to “swap” them with the United States for Cuban refugees currently held in American immigration detention on Guantanamo Bay. Not content with the Pacific solution, the Government is pursuing talks with Indonesia to set up the “Indian Ocean solution” – getting Indonesia (not a signatory to UN Convention or Protocol on Refugees) to detain and process any intercepted boat arrivals seeking asylum.

What we have also seen from the case of the Sri Lankan asylum seekers and from David Hicks is that the Government will sometimes respond to public sentiment. With the Federal Election due later this year those of us concerned about the direction the Government’s refugee and asylum seeker policy is headed must speak out. We need to let our politicians (both Government and Opposition) know that Australia’s refugee and asylum seeker policy must be consistent with our international obligations and voice our concerns about refugee swapping and the proposed “Indian Ocean solution”.

In the Tampa incident of 2001, Prime Minister John Howard set down what has become a key plank of the Federal Government’s policy on asylum seekers arriving by boat – he refused to allow the rescued asylum seekers to enter Australian territory. Since then, the Government has demonstrated the extraordinary lengths and expense it is prepared to go to for the policy objectives to be met. We have seen Christmas Island excised from Australian territory for immigration purposes and the “Pacific solution” – offshore detention centres in Nauru and Papua New Guinea.

Almost six years on, the Government’s enthusiasm for this policy remains unabated. The current Minister for Immigration and Citizenship, Kevin Andrews has shown remarkable zeal and determination in pursuing the policy in his handling of the case of 83 Sri Lankan asylum seekers intercepted by HMAS Success on 20 February 2007. The 83 Sri Lankan asylum seekers are currently in Australian immigration detention in Nauru.
The Government and the Department have, by their actions and the statements of Minister Andrews, indicated that pursuit of the policy of non-arrival in Australia is paramount. Australia’s international obligations with respect to asylum seekers are of secondary interest and concern.
This most recent case of boat arrivals has also shown that the extent to which the Government will go to enforce its policy will be tempered by public interest and scrutiny in the matter. What we have seen is a Government determined to drive a policy home but with a certain level of sensitivity to criticism or protests.
The Government was, at one stage, investigating the possibility of sending the Sri Lankan asylum seekers back to Indonesia where the boat had departed from. This was despite clear indications from Indonesian officials that they would have been returned promptly to Sri Lanka. Public concern about this resulted in the Government backing away from this option.
In this Federal election year, it is all the more important for those with concerns about the direction of asylum seeker and refugee policy to speak up. Both the Government and Opposition are sensitive to public opinion but there also needs to be sufficient numbers of constituents raising concerns for these to be heard and taken seriously.

The treatment of the Sri Lankan asylum seekers has shown that there is indeed cause for concern with the Government’s asylum seeker and refugee policy, particularly as it applies to asylum seekers arriving by boat. Some of the more troubling aspects have included:
* Attempts to turn the boat back when it was first spotted including conducting repairs to the engine in order for this to occur.
* Initial contemplation of the possibility of simply returning the men to Sri Lanka. There was also, as mentioned above, the continued negotiation with Indonesia on sending the men there when it was clear that the Indonesians would send them straight back to Sri Lanka.

The men were initially moved off the HMAS Success to Christmas Island. * Christmas Island has been excised from Australian territory for the purposes of immigration law. The effect of this is that refugees may not apply for asylum in Australia on Christmas Island without the permission of the Immigration Minister. This was still seen as “insufficient deterrence” so after almost a month, the Government moved the men to Nauru.
* Reluctance to acknowledge that the men were asylum seekers in the first place and then that the men had requested legal assistance. The Government and Department expect asylum seekers to follow a very specific script before they will accept that a person is seeking asylum and/or is requesting legal assistance. To access legal assistance the asylum seeker has first to find a lawyer willing to represent him or her and then request the Department for access to that lawyer. How does one do that in detention in Nauru or even from Christmas Island?
* The lack of clarity and transparency on how the men’s claims will be processed on Nauru, who will process those claims and what claims will be processed. Australian immigration officials (not the UNHCR or the International Organisation for Migration as initially claimed by Minister Andrews) will assess the men’s claims for refugee status. There is no right of appeal or judicial review.
Even for those assessed as genuine refugees, there is no right to claim asylum in Australia (contrary to the joint media release with the Minister for Foreign Affairs). Minister Andrews has already stated that Australia will not grant protection visas to these refugees but will look to a third country to resettle them. In a bizarre development, the Minister announced in April that a Memorandum of Understanding had been signed with the United States that would enable Australia and the US to “swap” refugees. The Minister hailed this as a process that “doesn’t lead them to jumping queues and destroying the integrity of our system”. The Minister’s office has confirmed the Sri Lankans and eight Burmese having their refugee claims processed on Nauru would be the first group to be “exchanged” with the US.*
* The continued demonising of asylum seekers who arrive by boat by the Government. Minister Andrews has made repeated references to asylum seekers “joining a queue” to have their asylum claims processed. The Minister wants asylum seekers to make a refugee claim somewhere else rather than “simply paying money” for passage on a leaky boat to Australia. He has made repeated references to the sums of money allegedly paid to people smugglers, seeking to create the impression that these are wealthy economic rather than genuine refugees. The “queue” is the refugee resettlement programme run by UNHCR in conjunction with member states. However, to “join the queue” you must first be assessed by UNHCR as being a refugee – it is simply not a matter of placing you name down on a list for resettlement.
* Consideration by the Government of extending the off-shore processing of boat arriving asylum seekers to Indonesia (the so-called “Indian Ocean solution”). Unlike the arrangement with Nauru where Australian immigration officials process asylum seekers for refugee status, the Government would expect Indonesian officials to be responsible for processing. Indonesia is not a party to the 1951 Convention or the 1967 Protocol Relating to the Status of Refugees and would not be obliged to comply with UN protocols on the assessment of refugee status. Indonesia would also not be bound by the prohibition of refoulement – the sending back of refugees to a place where they face persecution. And what would happen to asylum seekers from West Papua or other Indonesian provinces?
The Government is continuing to push the boundaries of what is acceptable treatment of asylum seekers and refugees. It has determined, in the case of the 83 Sri Lankan asylum seekers, that they will not be “rewarded” by being processed for refugee status on Christmas Island even though it not Australian territory for the purposes of migration laws. Further, they will not be “rewarded” by being allowed to settle in Australia even if they are found to be genuine refugees but will be resettled in the United States. The extent to which resettlement in the United States is a deterrent is debatable but the idea of swapping refugees with another country and moving refugees halfway around the world raises not just humanitarian but also economic concerns. Also concerning is the Government seeking an agreement with Indonesia to take over Australia’s responsibilities for future boat arrivals seeking asylum in Australia.
We have seen that the Government (and the Opposition) will respond to public pressure. That David Hicks is now back in Australia after five years of inaction by the Government is a prime example of the power of public sentiment. We must make it clear that we expect the Government to comply with Australia’s obligations under the UN Convention and Protocol Regarding the Status of Refugees. This means:
* abandoning the Pacific solution and not pursuing the Indian Ocean solution;
* ensuring that asylum seekers are able to have the claims for refugee status and asylum in Australia fairly and with access to legal and other assistance;
* we do not discriminate against asylum seekers on any basis including the way in which they attempt to enter Australian territory; and
* not engaging in the swapping of refugees with the United States or any other country.
Contact your local Federal Member of Parliament, the Minister for Immigration and Citizenship and the Shadow Minister for Immigration, Integration and Citizenship. You can find the relevant contact details at www.aph.gov.au/house/members/index.htm.
“All that is necessary for the triumph of evil is that good men do nothing”
(Edmund Burke, 18th century Irish orator, philosopher and politician)

Catherina Toh
The Justice Project