Law, National security | Australia

23 August 2022

The Albanese government can’t claim to have a legal and humane border policy while continuing Operation Sovereign Borders, Chris Fitzgerald writes.

Between May and June this year, at least three boats carrying up to 80 asylum seekers reached Australian waters. Since May, the Sri Lankan navy has intercepted 10 boats at sea, reportedly carrying 353 people, with an additional 53 people arrested on land.

The asylum seekers that did reach Australian waters had their claims for protection assessed by Australian authorities at sea, before being forcibly returned to Sri Lanka, where they were reportedly arrested.

The increase in boat arrivals from Sri Lanka reflects the country’s worsening economic crisis, which led to its default on more than $7 billion in debt and rising inflation. Widespread shortages of food, fuel, and medical supplies has led to social and political unrest, with authorities responding with violence through tear gas, water cannons, and arrests.

With no end in sight to the situation in Sri Lanka and people expected to continue fleeing the country, Australia’s response will prove pivotal for these people’s safety and lives.

However, Prime Minister Anthony Albanese’s claim of being “strong on borders without being weak on humanity” will prove a hollow statement unless the government deals with asylum seekers in a way consistent with Australia’s obligations under international law.

Australia’s current approach is to continue Operation Sovereign Borders, a policy introduced by the former Coalition government in 2013, which the new Labor government supports.

Operation Sovereign Borders includes the offshore processing of asylum seekers, regional resettlement where available, and turning back boats ‘where safe to do so’. The policy also denies the right of any person seeking asylum by boat to settle in Australia.

The policy has been criticised by the United Nations, with a 2021 report to the Human Rights Council stating that forcibly turning back boats is a “cruel and deadly practice” that risks sending people back to face death, torture, or persecution.

Many future arrivals are likely to be Sri Lankans from Tamil-majority regions who continue to face persecution, discrimination, and state-sanctioned violence. This stems from the decades-long and bloody civil war between the Tamil Tigers and the Singhalese-dominated government.

More on this: Podcast: Julian Burnside – Changing attitudes towards refugees and asylum seekers

While Prime Minister Albanese has used his government’s decision to grant temporary bridging visas, and then permanent residency, to the Nadesalingam family as proof of this more humane approach, the continuation of Operation Sovereign Borders indicates otherwise.

Operation Sovereign Borders has many problems.

The first concern is the rapid on-water assessment of claims for protection when boats are intercepted by Australian authorities. Doing this on water can be chaotic, and authorities reportedly ask only a few questions, including a person’s name, country of origin, and why they had left.

The Office of the United Nations High Commissioner for Refugees (UNHCR) has previously raised concerns about the legality of these procedures stating that “UNHCR’s experience over the years with shipboard processing has generally not been positive. Such an environment would rarely afford an appropriate venue for a fair procedure.”

To abide by the principle of non-refoulement, a government assessing an application for protection must meet international minimum standards. This includes a full refugee status determination process to properly determine whether a person’s needs for protection are properly identified.

If it doesn’t meet these standards, Australia’s policy of on-water assessments could violate the 1951 Convention on the Status of Refugees, which obliges Australia to provide a sufficient opportunity for people seeking asylum to adequately articulate their need for protection as part of the refugee status determination process.

Secondly, Australia also has obligations under the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Rights of the Child to not turn back people who face a real risk of the violation of their human rights.

More on this: The high price of Australia’s refugee policy

This is a legitimate concern. A number of asylum seekers from Sri Lanka and Vietnam have already alleged that they were detained, questioned, and in one case even tortured, by authorities when they were forcibly returned to their country of origin.

Indeed, a number of these asylum seekers returned by Australia to Sri Lanka fled to Nepal, where they have since been recognised as legitimate refugees by UNHCR. Turning back boats may also be illegal under other international conventions. Under the Convention of the Law of the Sea, vessels are the responsibility of their country of registration. For this reason, Australia may not have the right to intercept and forcibly turn back boats without permission from the country they came from.

Furthermore, while Australian authorities are entitled to approach vessels under Australian immigration law, they should do this proportionately and on a case-by-case basis. This should not include detaining people seeking asylum or escorting boats to a port outside of Australia.

The Albanese government’s border policies must change to meet Australia’s obligations under international law.

It should assess all claims for protection in Australian territory, not on-water. This would also give the public and human rights advocates more access to claims made by people who arrive by boat for better transparency and accountability.

The government should also follow best practice and provide refugee status determination assessments on-shore for all people who arrive by boat seeking protection. Authorities must ensure people can fully exercise their right to articulate their need for protection. Then they must properly process these claims in accordance with international law.

Finally, Australia must stop turning back boats. The practice likely violates international law, and is inhumane. Authorities put innocent lives at risk at sea and continuing this policy increases the chances that legitimate refugees will be returned home and persecuted.

Australia has a chance to ensure that legitimate refugees can realise their rights under international law and can be properly protected by a country that meets its international legal obligations. Only if it takes these steps can the Albanese government claim to have a ‘humane’ policy when it comes to asylum seekers.

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