Bishop’s Sri Lankan Asylum Seeker Deal Is Illegal

Over the weekend Deputy Opposition Leader Julie Bishop proposed a treaty with the Sri Lankan government that would allow Australia to deport asylum seekers before they are granted access to our legal system.

In other words, the Coalition wants the government to be able to turn away, without legal consideration, all nationals from a single country seeking asylum in Australia.

Julie Bishop’s reasoning is that recent rejection rates for Sri Lankan asylum seekers have been "extremely high", with the "vast majority" proving to be economic migrants, not refugees.

The most recent quarterly asylum statistics (pdf) released by the Department for Immigration and Citizenship tell a different story.

The rate of primary protection visas granted to Sri Lankan asylum seekers from irregular maritime arrivals was 64 per cent in the September quarter of 2011-12, rising to 100 per cent in the December quarter and falling to 43.9 per cent in the March quarter.

Though there was a significant drop in the last quarter recorded, it is hard to say that a grant approval rate of 43.9 per cent correlates to an "extremely high" rejection rate.

According to reported Immigration Department figures, 4491 Sri Lankans have arrived by boat since 2008 and so far 878 have been granted refugee protection, with many still awaiting processing.

Those who are refused asylum and returned to Sri Lanka are not necessarily safe, despite their lack of refugee status.

A recent Sydney Morning Herald investigation uncovered a number of rejected asylum seekers who say they have been arrested, imprisoned without trial and tortured on their return home.

These details are in accordance with the findings of abuses against returned Sri Lankan asylum seekers from Human Rights Watch in February 2012 and the Edmund Rice Centre in May 2010.

As Julie Bishop has rightly noted, the decades long civil war between government forces and Tamil separatist group the Liberation Tigers of Tamil Eelam (LTTE) ended in May 2009.

Her position is that the Australian Government should no longer grant refugee status to any Sri Lankans as the civil war is over.

But the conclusion of a war does not necessarily mean the end of genuine refugees. Nor has fleeing a war ever been a necessary precondition for refugee status. As the Coalition may remember, the Fraser government welcomed many South Vietnamese people to Australia after the Vietnam War ended in 1975.

A blanket policy covering all Sri Lankan asylum seekers would necessarily preclude a group of legitimate refugees from the legal protections to which they are entitled, a position backed by the Human Rights Law Centre.

Julie Bishop’s response to this is to place all responsibility on UN High Commissioner for Refugees observers on the ground in Sri Lanka to ensure that there are no violations.

On Sunday, Green Leader Christine Milne made the important point that the pledge to increase Australia’s humanitarian intake to 20,000 needs to be better advertised on the ground to dissuade people from getting on boats in the short-term, as opposed to the use of ever harsher deterrents.

Regarding those who are awarded refugee status in Australia, Bishop says the Australian government needs to provide an explanation to the Sri Lankan government.

"The Australian government should explain why they believe that Sri Lankans are being persecuted, that’s vehemently denied by the Sri Lankan government," she said.

By posturing the issue as a matter of foreign policy, the Coalition is undermining the government’s international humanitarian obligations.

The politicisation of those who are found to be genuine refugees is a risky move.
A direct agreement with the Sri Lankan government would explicitly refuse to consider any legal protections for a group of people — no matter how small — that will knowingly be sent back to persecution, imprisonment, torture or worse.

This proposal would violate both customary international law and the legal principle of non-refoulement enshrined in the 1951 UN Refugee Convention, to which Australia is a signatory.

Article 33 states: "no contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Also relevant here is Article 16, that guarantees free access to the courts of law on the territory of "all contracting states".

Although post-war Sri Lanka may well be on the path to "peaceful reconciliation" — as the Coalition argues — it is Australia’s international duty to protect those who continue to be the victims of human rights abuses.

Earlier this year, the UN Human Rights Council adopted resolution 19/2 urging Sri Lanka to investigate human rights violations contravening international law by both sides in the final stages of the civil war.

Arbitrary and illegal detention of those perceived to be security threats, their family members and colleagues, peaceful critics of the government, journalists and others have been widely observed (pdf)  after the war.

Amnesty International has identified (pdf)  a post-war "climate of impunity where arbitrary detentions, torture and other ill-treatment, enforced disappearances and custodial killings continue unchecked."

The organisation also states that the Sri Lankan authorities still rely on the Prevention of Terrorism Act (PTA) to detain "hundreds of people suspected of LTTE links without charge or trial."

ABC’s Four Corners program screened a British Channel 4 documentary in July 2011 that provided brutal video evidence of government shelling of civilians in "no fire" zones and the use of civilians as human shields by the Tamil Tigers at war’s end.

As Brock Bastian wrote at the time on The Conversation, only weeks earlier footage of Australian cows being slaughtered in Indonesian abattoirs on the same program had led to public outrage.  The Sri Lankan footage evoked merely a whimper in comparison.

Even if we were to disregard the record of human rights abuses in Sri Lanka by both the government and the Tamil Tigers, what the Coalition is proposing is illegal.

Graham Thom, Amnesty International’s Refugee Coordinator in Australia said the proposal would be a "serious breach of international human rights law."
Immigration Minister Chris Bowen reasserted the primacy of international law in his response, saying it is Australia’s duty to consider asylum claims under the Refugee Convention and that the Coalition was being "ridiculous".

But with the odds tipping that they won’t be in Opposition for too much longer, the Coalition’s wilful disregard for international law and human rights with this rash proposal is disturbing.