Refugee Rights and Policy Wrongs by Jane McAdam

Author:Jane McAdam
Language: eng
Format: epub
ISBN: 9781742244570
Publisher: NewSouth Publishing

International refugee law and human rights law

Australia’s actions – whether on the high seas, in the contiguous zone or in territorial waters – must be consistent with international refugee law and human rights law, including the principle of non-refoulement and the duty in article 31 of the Refugee Convention not to impose penalties on asylum seekers for entering the territory (including territorial waters) without a passport or visa. All of these obligations apply to both flagged and stateless vessels.

Yet Australia does not have appropriate mechanisms for identifying potential refugees on boats that are intercepted and turned back by Australian officials. When Rear Admiral Smith was questioned about this in relation to Operation Relex in 2002, he responded:

It had no relevance for us. Our mission was clear – that is, to intercept and then to carry out whatever direction we were given subsequent to that. The status of these people was irrelevant to us … Claims from the UAs [unauthorised arrivals] were not factors to be taken into account in terms of how we conducted that mission.77

The evidence suggests that people turned back to Indonesia under Operation Sovereign Borders are not given any opportunity to claim asylum. This means that Australia risks breaching its non-refoulement obligations every time it turns back a boat to Indonesia.78

In relation to takeback operations to Sri Lanka and Vietnam, we know that Australia uses an ‘enhanced screening’ process at sea (see chapter 2). In one case, enhanced screening interviews were reported to have taken place by teleconference, over a poor line and in noisy conditions.79 In other cases, the Australian government has said that interviews were undertaken by Australian officials on board the vessel, with the support of interpreters.80 However, reports from returned asylum seekers and their lawyers suggest that the enhanced screening process does not afford a sufficient opportunity to articulate a need for protection.81

As the Kaldor Centre’s Expert Roundtable on these issues observed, there is much that we simply don’t know.82 What we do know, however, is that there is no publicly available evidence to assure us that appropriate, individualised assessments of protection needs are being undertaken.83 Indeed, it is hard to contemplate how on-board assessments would enable a full consideration of people’s protection claims, given:

» the distress, confusion and health issues likely to affect intercepted people, impairing their ability to understand and engage effectively with any process while at sea;

» the lack of transparency, scrutiny or oversight by independent authorities or international organisations;

» the lack of procedural safeguards in the process, including the lack of independent review of screening decisions by a senior authority outside the department or agency making the initial decision;

» difficulties in securing access to interpreters and legal representation, including in cases where these services were provided remotely by phone and people struggled to hear and understand each other; and

» difficulties ensuring that the necessary expertise, capacity and processes were in place on an intercepting vessel to meet the needs of asylum seekers with particular vulnerabilities and special needs, including

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