Detainee struggled to fill out 41-page application form in English – and was not able to access legal assistance in time

This article is more than 2 years old

This article is more than 2 years old

A Tamil asylum seeker has become the first person slated for deportation – without having his claim for protection even assessed – after falling foul of the ministerial deadline of 1 October to apply.

The man, who has been given the pseudonym Rajah because he remains at risk of being deported, was placed in handcuffs at Villawood detention centre on Wednesday morning and slated for removal in the evening.

It is believed he will be flown back to Colombo via Singapore. Returned asylum seekers are, almost invariably, arrested at Bandaranaike airport.

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Rajah arrived in Australia by boat in 2012 seeking asylum, having fled government persecution after Sri Lanka’s brutal civil war. His lawyers say he has a credible claim of persecution, based on his Tamil ethnicity and family links to the now-defunct separatist military force the Liberation Tigers of Tamil Eelam, also known as the Tamil Tigers.

In May the immigration minister, Peter Dutton, announced that all asylum seekers who had not yet lodged their claims for protection with the government must do so by 1 October or they would not be considered at all.

He said some were “fake refugees” for whom “the game is up”. “They need to provide the information, they need to answer the questions and then they can be determined to be a refugee or not,” he said.

Thousands of asylum seekers who had been living in Australia for years had only just had the “bar” to applying for asylum lifted, and the waiting list for legal assistance at refugee legal centres was more than a year in some cases.

All of the new applications were put through the so-called “fast-track” process, which removes many of the safeguards and appeals mechanisms.

Rajah struggled to fill out the 41-page application form in English unassisted, and was not able to access legal assistance before the deadline. Seven thousand asylum seekers were told they needed to meet the 1 October deadline. Rajah was one of 71 who failed to meet the cut-off.

With assistance from the Refugee Advice and Casework Service, he lodged an application for protection during October but was told he had missed the deadline and his claim would not be assessed.

His is the first case that has come to public notice of an asylum seeker being forcibly returned to their country of origin without their protection claim being considered.

Sarah Dale, principal solicitor with the Refugee Advice and Casework Service said Australia was setting a dangerous precedent.

“Based on our experience of thousands of cases, this young man has a credible case for protection, an application has been submitted to the department and the department is ignoring that. Their response, in a nutshell, is he failed to meet their deadline.”

But Dale said the deadline was “entirely arbitrary” and without any justification. “We told the government, repeatedly, that this would happen, that people, for a number of reasons, would not be able to meet the deadline, and now they risk being returned to a place where they face potential arrest or torture or harm.”

Australia is still legally bound by its non-refoulement obligations under the refugees convention. It cannot return a person to a place “where [their] life or freedom would be threatened”.

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The return of Tamils to postwar Sri Lanka, by Australia and other countries, remains controversial. There has been widespread reportage of the mistreatment and torture of prisoners by Sri Lankan security forces, including the systematic use of rape.

In July the UN’s special rapporteur Ben Emmerson visited Sri Lanka and reported that “the use of torture, has been, and remains today, endemic and routine, for those arrested and detained on national security grounds”.

“Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture,” Emmerson wrote.

Arrest warrants issued over alleged links to the Tamil Tigers are often seen as highly politicised or based on limited, or no, evidence.

Australia’s department of immigration declined to comment on Rajah’s case, but has commented on the return of Tamils generally, and its non-refoulement obligations. “Australia does not remove people to Sri Lanka who engage Australia’s non-refoulement obligations,” a spokesperson said last week. “Australia takes its non-refoulement obligations seriously.”