By Azadeh Dastyari

On 9 April 2013, 66 Sri Lankan asylum seekers sailed into Geraldton harbour in Western Australia. Their arrival was met with great alarm by politicians and the media. It had been a long time since any asylum seekers had reached the mainland, and none had ever made it so far south. The Premier of Western Australia, Colin Barnett, went as far as to state that the arrival was ‘a serious, unprecedented and unacceptable breach of Australia’s border security’. The leader of the Opposition, Tony Abbott, agreed with the Premier, travelling to Geraldton – a place he labelled the ‘site of a major lapse in Australia’s border security’ – to attack the Government for its perceived policy failures.

You may well be wondering what all the fuss is about as the group was far from the first fleeing persecution in an attempt to enter the country. The difference is that Geraldton is not an ‘excised offshore place’. In 2001, the Howard government amended the Migration Act to remove almost all Australian territory, other than the mainland, from the migration zone. This was part of the Howard government’s ‘Pacific Solution’.

As a result of those changes, any asylum seekers who land in an ‘excised territory’ can be taken to a ‘declared country’ – currently Nauru or Papua New Guinea – for processing. Asylum seekers who arrive in ‘excised territory’ such as Christmas Island do not have an automatic right to make a claim for protection. The Minister for Immigration must grant them permission to apply for any kind of visa, including a protection visa. In contrast, asylum seekers who arrive in a territory that is not excised from the Migration Zone have an automatic right to apply for a protection visa, and they cannot be sent for further processing to Nauru or Papua New Guinea’s Manus Island.

Despite the Geraldton arrival, it is almost impossible for asylum to come to Australia at a place that has not been excised from the migration zone. Since 2001, more than 4,891 islands have been excised from Australian territory. Christmas Island, Ashmore Island and the Cartier and Cocos (Keeling) Islands were the first to be excised in September 2001, and many more followed once the Coalition government had control of both houses of Parliament in 2005. The following link provides a map of the locations of excised territory.

Previous successful attempts by asylum seekers to reach territory that was not excised from the migration zone have resulted in great controversy. For example, in 2002, a boat carrying 14 Kurdish asylum seekers from Turkey reached Melville Island which was not excised territory at the time. A few hours after their arrival, the government retrospectively excised Melville and many other islands off the northern coastline from the migration zone. The Senate disallowed the regulations less than two weeks after they were introduced, however this was too late for the asylum seekers who had been taken to Indonesia. Melville Island is now excised territory as a result of the 2005 excisions.

The following year, 43 people fleeing the Indonesian territory of West Papua arrived in Cape York. The decision to grant refugee status to 42 members of this group caused a major international incident, with Indonesia objecting vehemently and withdrawing its ambassador from Australia.

Like something out of a Monty Python sketch, a bill currently before parliament would excise all of Australia from the migration zone. The Bill was referred to the Legal and Constitutional Affairs Committee, which recommended some mandatory reporting requirements but otherwise approved of the Bill. Should it be passed (and it is likely that it will be for it enjoys bi-partisan support), asylum seekers arriving by boat will not have an automatic right to apply for any kind of visa and will also be subject to processing and detention on Nauru or Manus Island. It is interesting to note that the Howard government’s attempt to enact similar legislation failed in 2006 because of the opposition of the Labor party and moderates within the Coalition itself.

Arriving in territory that is not excised from the migration zone is not, however, a guarantee that asylum seekers will be provided a fair and effective determination of their status. 38 of the 66 Sri Lankans who arrived in Geraldton have directly been deported back to Sri Lanka, with the Minister for immigration admitting that some of the deported asylum seekers were never provided with an opportunity to speak to a lawyer or to access Australia’s formal protection regime (which includes the right to request an independent review of a finding that one is not a refugee). Indeed, the asylum seekers were subjected to a pre-application screening procedure where they were interviewed by officers of the Department of Immigration without being given access to any independent advice. In the interviews, representatives from the Department of Immigration look for words that will trigger Australia’s protection obligations to the asylum seekers. That is, only people who say the right things such as speaking about their fear of persecution are screened in, whilst others who speak about their desire for a better life for their children are screened out. This is even if both groups have the same fears and will face the same fate should they be deported. Any decision made during screening is not reviewed by an independent body such as the Refugee Review Tribunal.

There is a risk that during the screening procedure immigration officials are failing to recognise genuine refugees, since there are many reasons why refugees may not speak about their real fears in an initial interview. Without independent advice, asylum seekers may not understand the significance of what they are saying. Many asylum seekers are also suspicious of authority figures because they have been the subject of persecution at the hands of their own governments. As Australia’s Human Rights Commissioner, Gillian Triggs has stated, ‘using a screening process like this, rather than giving people access to the normal protections under the refugee status determination system, risks involuntarily returning people who may in fact have legitimate claims for protection under international law’.

Obviously Australia does not have a legal obligation to provide refugee status to every asylum seeker who seeks its protection, and is therefore permitted to remove people from Australia who are not refugees. Australia does, however, have a legal obligation under the Refugee Convention to provide protection to any refugee, that is, any individual fearing persecution because of his or her race, religion, nationality, membership of a particular social group or political opinion, and Australia is not permitted to deport refugees back to persecution.

There are reasons to believe that at least some of the asylum seekers deported from Australia may have been refugees. Sri Lankans are one of the largest asylum seeker groups arriving in Australia by boat. Some Sri Lankans seek asylum because of the devastating effects of a long and destructive civil war between the majority Sinhalese and the minority Tamil population that ended in May 2009 after more than 25 years of violence. Such asylum seekers may not necessarily qualify for refugee status. However, a significant portion is indeed fleeting persecution in their home country. Human Rights Watch has reported ‘threats, surveillance, and clampdowns on activities and free speech’, the detention of ‘several thousand people’ without charge or trial, and ‘arbitrary arrests, new enforced disappearances, abductions, and killings in the north and the east’ of the country. These allegations are supported by Amnesty International which has highlighted ‘a persistent culture of impunity, in which arbitrary detention, torture, extra-judicial killings and other serious violations continue to be regularly reported’ in Sri Lanka. A recent UN Human Rights Council Resolution urged the Government of Sri Lanka to ‘ensure that there is no discrimination against ethnic minorities in the enjoyment of the full range of human rights.’

In order to abide by its international obligations, Australia must have fair and effective status determination procedures which enable it to identify and protect refugees from being sent back to persecution. We are unlikely to ever find out if any of the Sri Lankan asylum seekers deported by Australia were in fact refugees. What we do know is that the screening procedures adopted by Australia are neither fair nor effective because they do not provide safeguards to ensure that refugees are not returned to harm. It is therefore important that Australia ensures that all asylum seekers, regardless of where they arrive in the country, their mode of travel or their nationality, are provided with legal assistance and access to Australia’s refugee status determination regime which includes access to an independent review of any decision to return them to their home country.

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