Discrimination against Refugees: Expulsion of Sri-Lankan Tamil asylum seekers arriving in Australia

Photo source: http://newsfirst.lk/english/2014/07/australia-may-forcibly-return-boat-people-back-south-asia/42547

By expelling Sri-Lankan Tamil asylum seekers who arrive in Australia by boats, Australia has violated many of its international human rights obligations by aiding the Sri-Lankan government to intercept these asylum seekers and placing them in risk of being tortured, raped and ill-treated in Sri-Lankan custody when they are deported to Sri-Lanka.

Australia is a contracting party to the 1951 Convention relating to the Status of Refugees, its 1967 Refugee Protocol and the peremptory norm of customary international human rights law present in Article 14(1) of the Universal Declaration of Human Rights (UDHR) which states that “everyone has the right to seek and to enjoy in other countries asylum from persecution”. Central to the 1951 Convention relating to the Status of Refugees is the non-refoulement obligation under Article 33(1) which states that, “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.” Australia’s conduct in returning 1248 Tamil asylum seekers since October 2012 by using the “enhanced screening process” reflecting a breach of both the 1951 Convention relating to the Status of Refugees and Article 14 (1) of the UDHR and emphasises Australia’s lack of accordance with the practice of refoulement which would grant individuals the enjoyment of asylum from persecution.

Australia’s discriminatory “enhanced screening process” applies only to Sri-Lankan individuals seeking asylum who are interviewed by the Department of Immigration and Citizenship (DIAC). If the DIAC determines that the individual raises claims, which may engage Australia’s protection non-refoulement obligations, the individual will be assessed under the non-statutory refugee status assessment (RSA) process and a complementary protection system that applies under the Migration Act 1958 (Cth). The complementary protection system comprises of access to government funded migration and legal advice and assistance under the Immigration Advice and Application Assistance Scheme, a primary assessment by DIAC. However, if the individual seeking asylum does not raise claims that do not engage Australia’s protection non-refoulement obligations, they are then consequently “screened out” and removed from Australia.

Australia’s “enhanced screening” and its subsequent deportation of Tamil people which places them at a significant risk of torture whilst in detention violates its international obligations under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Detention by Sri-Lankan security forces places many Tamils at the risk of being tortured. When sent back to Sri-Lanka, Tamil individuals are often held in police custody, subject to prosecution for illegal migration and even when released from custody, they are often under the constant surveillance of security forces that function in accordance with the Sri-Lankan government. Numerous reports cite sexual violence, rape, torture and other various forms of ill-treatment perpetrated against Tamils in custody who return to Sri-Lanka following a period abroad. In 2013, Human Rights Watch reported ten cases of rape, sexual violence, torture and other forms of ill-treatment by Sri-Lankan security forces against Tamils who were deported to Sri-Lanka from abroad following the end of the war. Upon arrival, many were arrested immediately, interrogated and subject to torture, including rape, whilst in custody.

Australia has failed to acknowledge the abuses suffered by Tamils by insisting that there are no substantiated claims of torture of Tamils deported from Australia to Sri-Lanka. Furthermore, evidence suggests the poor manner in which Australia addresses the torturous treatment of deported Tamil asylum seekers in Sri-Lanka. For example, an Australian Federal Police officer in Sri-Lanka reportedly declined an offer to interview a Tamil asylum seeker who was deported to Sri-Lanka from Australia and claimed that he has been severely tortured. Instead of assessing the man’s claims, the AFP stated that, “In the interests of keeping our distance from the Sri-Lankan investigations, we do not intend to take up the offer to meet with him,” which reveals the wilful blindness to the ongoing trauma faced by Tamil deportees under Sri-Lankan custody.

Emily Howie, the Human Rights Law Centre’s Director of Advocacy and Research states that, “Australia is wilfully blind to the reality that the majority of Sri-Lankans arriving by boat are fleeing ongoing human rights abuses and have a pressing need and a right to seek protection. Australia is not only helping to block their escape, but is also sending Sri-Lankans back into the hands of the very authorities from which many have fled,” which emphasises that Australia has not adequately monitored the safety of Tamils it has deported. Regarding Australia’s “enhanced screening” and its inadequate nature in failing to properly recognise many Tamils as refugees, Howie believes that it is an “administrative shortcut (since) these are potentially life and death decisions and yet there’s no transparency around decisions to return people.”

Ultimately, since Australia is a signatory to the 1951 Refugee Convention, its protocol and the UDHR, Australia clearly has an obligation to ensure Tamil refugees are not returned to territories where they could possibly face a risk of being persecuted, tortured or mistreated in any other cruel manner. Yet to the contrary, Australia’s conduct in returning Tamil asylum seekers back to Sri-Lanka, its adoption of the discriminatory and unfair “enhanced screening” refugee determination process and its blatant denial of the ongoing human rights abuses that are occurring in Sri-Lanka reflects a breach of its international obligations.

References

[1] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)(‘Refugee Convention’).

[2] Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)(‘1967 Protocol’).

[3] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 14.

[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)(‘Refugee Convention’) art 33 (1).

[5] Human Rights Law Centre, Torture, rape and ill-treatment suffered by Sri-Lankans who return home, <http://hrlc.org.au/wpcontent/uploads/2014/09/HRLC_BackgroundBrief_SriLankan_returnees_Sep2014.pdf>.

[6] Refugee Convention.

[7] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 14.

[8] Migration Act 1958 (Cth).

[9] Australian Human Rights Commission, Tell me about: ‘The Enhanced Screening Process’, <https://www.humanrights.gov.au/sites/default/files/document/publication/enhanced-screening.pdf>.

[10] 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)(‘1984 Torture Convention’).

[11] Human Rights Law Centre, Can’t Flee, can’t stay: Australia’s interception and return of Sri-Lankan asylum seekers (March 2013), < http://www.hrlc.org.au/wp-content/uploads/2014/03/HRLC_SriLanka_Report_11March2014.pdf>.

[12] Human Rights Law Centre, Torture, rape and ill-treatment suffered by Sri-Lankans who return home, <http://hrlc.org.au/wpcontent/uploads/2014/09/HRLC_BackgroundBrief_SriLankan_returnees_Sep2014.pdf>.

[13] Human Rights Watch, We Will Teach you a Lesson (26 February 2013)

< https://www.hrw.org/report/2013/02/26/we-will-teach-you-lesson/sexual-violence-against-tamils-sri-lankan-security-forces>.

[14] Human Rights Law Centre, Torture, rape and ill-treatment suffered by Sri-Lankans who return home, <http://hrlc.org.au/wpcontent/uploads/2014/09/HRLC_BackgroundBrief_SriLankan_returnees_Sep2014.pdf>.

[15] SBS News, Dateline, Turned Back to Torture?

<http://www.sbs.com.au/news/sites/sbs.com.au.news/files/transcripts/382427_dateline_turnedbacktotorture_transcript.html>.

[16] Human Rights Law Centre, UN Human Rights Council told that Australia is violating international law by blocking & returning Sri Lankan asylum seekers (19 March 2014),

< http://hrlc.org.au/un-human-rights-council-told-that-australia-is-violating-international-law-by-blocking-returning-sri-lankan-asylum-seekers/>.

[17] Ibid.