Civil wars lead to hard choices: individuals have to decide whether to become warriors, or flee as refugees. Inevitably, the lines become blurred and losing warriors leave bloodied battlefields as desperate refugees.
Australia’s response to refugee warriors, especially from Sri Lanka, is a mess of contradictions and diplomatic failures. By deeming refugees to be threats to national security, we have created a category of “dangerous refugees" and we don’t know what to do with them.
This is the case for many of the 54 refugees currently in indefinite detention in Australia. Some, but not all, have been accused of being members of the Tamil Tigers in Sri Lanka who fought for the political independence of the Sri Lanka's Northern Province for over 30 years. On this basis, they have been given Adverse Security Assessments because ASIO has assessed that they will be likely to commit acts prejudicial to Australia’s national security.
The defence for some of them is that this accusation is false: that they were not members of the complex onion that of Tamil Tigers. They deny being in the organisational core, the onion ring of fighters or the next layer of signed up political members. Some of them were involved in the very outer ring of involuntary participation in military exercise and field trips that are akin to the exercises cadets may undertake in Australia.
If their defences are believed, that they were not signed up members of the Tamil Tigers what then is the basis for their claim of asylum? If they were not members of the political organisation fighting against the Sri Lankan Army and government, can they claim to be refugees?
It is not simple.
The assessments of a genuine fear of persecution, a danger to Australia and threat to national security, contain many shades of grey and complex considerations – including the degree of free will and the measure of continued political ideology that may lead to future violence.
There are also different tests for the assessment of a refugee claim and a separate ASIO adverse assessment. All of this needs to be walked through with a degree of legal technicality – rather than popularist dichotomies of “good” and “bad” refugees.
Let’s walk through it.
Under the Refugee Convention, a refugee must have a genuine fear of persecution. This could be on the basis that they were a member of an organisation such as the Tamil Tigers, or that they are of an ethnicity experiencing persecution, or another basis. It could also be on the basis that they feared, for example, that the Sri Lankan authorities believe they may be a member of the Tamil Tigers – whether they were or not.
Refugees also need to pass Articles 1F and 33(2) and demonstrate that they are not a risk to the country in which they seek asylum and that they have not committed war crimes.
Under this test, if they are found to be dangerous, they are not considered refugees.
This does not preclude, a member of the Tamil Tigers from being assessed as a refugee if they have not committed war crimes or other serious violence and if they are not likely to present a risk to Australia.
So, people who were members of the Tamil Tigers but are not excluded as criminals or threats under Article 1F and 33(2) of the Convention, can still be refugees. And people who were not members of the Tamil Tigers , but had a genuine fear that they would be persecuted on this basis, can also be refugees.
Enter ASIO.
ASIO uses different (unknown) tools and different (unknown) standards to assess whether someone is a threat to Australia’s national security. The types of risks are defined and include espionage, sabotage and politically motivated violence.
The ASIO test is a separate test. It does not replace or negate the test for refugee status. The ASIO test cannot conclude that someone is not a refugee; it can only conclude that someone, in the view of ASIO, may be a risk to Australia, or Australia’s diplomatic relationships.
It is the ASIO test that has created the category of "dangerous refugees". In doing so, it has confused the definition of a refugee.
ASIO can find that they know something from which they conclude that a refugee may be dangerous – but no-one is told anything more than this. The person is still a refugee.
The High Court last year found that an ASIO finding could not be used as a basis to deny refugee protection to a person. But ASIO has recommended that Protection Visas not be issued, and therefore refugees have been indefinitely detained.
The ASIO findings of 54 refugees in indefinite detention are currently being reviewed by Margaret Stone. She is not reviewing their refugee status.
There are many possible conclusions to the review. A conclusion that eliminated the category of "dangerous refugee" would be the most useful.
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