Australia gets itself into a tangle over asylum seekers
Those who are deemed security risks can't stay and can't leave
On July 28 , 2013, the UN Human Rights Committee published two reports which found Australia in breach of a number of provisions of international law in its treatment of a group of asylum seekers held in indefinite detention. The Australian government is now due to file its reply to the Human Rights Committee.
Among the group were two Sri Lankans found to meet the strict refugee criteria, but whom the Australian Security Intelligence Organization (ASIO) had deemed a security risk. Once ASIO classifies someone a security risk, that person will not get residency in Australia and must leave.
However the problem for this group is there is nowhere for them to go to because although Australia accepts that they are refugees, they are seen as a possible security risk in Australia, and this finding makes it virtually impossible for then to find another country for resettlement.
One of the many problems for these refugees is that ASIO will not disclose its reasons for finding them to be a security risk and there is effectively no appeal against this decision. A concession by the previous Labor government was to have the cases reviewed by a judge. This was done and several cases were successful in this process. However the new coalition government stated they will end even this minor concession and just rely on the ASIO findings.
Australian law requires they be held in indefinite and non-reviewable detention until another country can be found for their resettlement – this could take many years. Although they won the UN case, there is no legal mechanism for them to enforce the ruling of the Human Rights Committee in Australia – so in detention they must stay. No alternatives to mandatory detention are considered.
Over the last few years more and more asylum seekers have made the dangerous sea voyage to Australia. Initially their cases were being processed but the political climate was increasingly dominated by a hostile then-opposition who incorrectly labelled these asylum seekers as ‘illegal’ and then proceeded to vilify them.
Part of the debate also focussed on ‘saving lives at sea.’ This clearly needed to be done but saving lives was presented as the key policy need – and the human rights and asylum needs of people was overridden. Saving lives and refugee assessment do not need to be the alternatives – you can have policies aimed at reducing the risk for people to travel by sea, but not punishing those who do. This is where the former Labor government panicked and tried to find resettlement options outside of Australia.
Initially East Timor was mooted, then a deal was done to transfer 800 asylum seekers from Australia to Malaysia in return for resettling 4,000 other refugees from Malaysia. The deal was ruled invalid by the High Court of Australia.
Then after August 2012, the Australian government reopened the processing centers in Nauru and Manus Island in Papua New Guinea (PNG). A change of prime minister in July 2013 led to a new deal with PNG whereby asylum seekers who arrived by boat would be possibly all sent to PNG and they would only be resettled in PNG if found to be refugees.
The change in government in September brought a new harshness to what was already a flawed and inhumane policy. Boats were to be interdicted and sent back to Indonesia. If people were unable to be sent back, they would be sent to PNG and never gain resettlement in Australia. The language became militarised and harsh under what is called ‘Operation Sovereign Borders’.
With Manus Island and Nauru at capacity, and PNG not able to really resettle anyone as a refugee, the Australian government has turned to other poor countries in our region, and it is reported that Cambodia has been approached.
Such harshness in policy under the current government but also under the previous government is giving a bad example to the region and elsewhere about the universal importance of protecting human rights and adherence to the International Conventions and Treaties.
If Australia is able to get away with subcontracting its international obligations to poor neighbors, how will any country take Australia seriously when it raises human rights concerns in the region or elsewhere? Already China has criticized Australia for human rights breaches.
If international law and the protection of human rights are to be taken seriously, then developed and rich countries have a special obligation to comply with the rule of law and respect international agreements.
No one seriously expects the Australian government 'sreply to the Human Rights Committee to be helpful to those refugees in detention. The Australian government has succeeded in vilifying a group of people claiming refugee protection, simply by the manner of their arrival. When governments are allowed to discriminate against a group of people, simply for political benefit, the fabric of international human rights is at risk.
The approach of the current Australian government in this area is not promoting the development and adherence to international law, but showing countries how you can flout it by paying poorer countries to do the hard work.
Meanwhile, the refugees who are found to be security risks remain in detention without any recourse to why they are a risk or a chance of proving themselves otherwise.
Kerry Murphy is a Sydney based human rights lawyer whose practice has focused on refugees and asylum seekers for over 20 years.
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