Issue #1569 17 October 2012
Hopes raised over asylum seeker court judgement
Two weeks ago the High Court of Australia decided in favour of a 36-year old Sri Lankan asylum seeker who had challenged his continued detention. He is one of 50 people who have been recognised as refugees because they would be in danger if returned to their country of origin, but who have also been classified as a security risk by ASIO, and have therefore been detained – in effect, imprisoned – indefinitely.
The Court found that the regulation which effectively vests in ASIO the power to refuse a visa is inconsistent with the Migration Act, and that the case in question should be reviewed.
However, the decision will not necessarily force the government to end indefinite detention. It is certainly great news for the detainee in question, but the government has said it will continue to detain him until his case has been reviewed, and will not accept the decision as a precedent for other detainees in similar circumstances.
The Attorney-General Nicola Roxon declared: “…the consequences for others will depend on the individual circumstances for each of those”. In other words, each case will have to be fought individually.
The asylum seeker’s barrister David Manne indicated he may become involved in further legal action if the government does not review all 50 cases, but the cost of arguing each case separately would be prohibitively expensive, and even if the money could be found the court action might take years to resolve.
Meanwhile, the federal opposition wants the government to “fireproof” its immigration policies with legislation “against any further action these taxpayer-funded lawyers may want to bring”.
It’s difficult to see how this could do be done without renouncing the UN Refugee Convention, which obliges Australia to deal with appeals for asylum fairly, and to treat applicants humanely while their refugee status and visa entitlements are determined.
Weighing in against the decision, opposition spokesman on immigration, Scott Morrison, thundered: “The High Court today found that the government has no power to keep known security risks out of our community.” That is nonsense, because there are plenty of laws to deal with genuine threats to national security.
The detainee in question had been a soldier in the former “Tamil Tigers” guerrilla army, which fought a bloody war for Tamil independence over decades. It now seems that the Sri Lankan government is routinely treating all such former combatants as terrorists, and that ASIO is accepting Sri Lanka’s advice to this effect and classifying them as a threat to Australia’s national security.
That’s another non-sequiter. Many people were swept up in that conflict, a civil war with no direct relevance to other nations, including Australia. There was little alternative to armed struggle, and the Sri Lankan government’s repression of the Tamil minority was brutal, especially in the closing stages of the war, when many Tamils were slaughtered on suspicion of being having been supporters of the “tigers”.
Moreover, the secrecy surrounding ASIO’s activities means that no evidence can be made available about its decisions, which cannot be challenged.
The federal opposition is arguing that most if not all Sri Lankan asylum seekers should be forcibly returned to Sri Lanka because they are “economic refugees”, i.e. people who leave their country in order to improve their economic position, not because of fear of persecution.
In fact, most Sri Lankan asylum seekers are Tamils, who have plenty to worry about, as far as their treatment by the Sri Lankan government is concerned.
Undoubtedly some people flee their countries for economic reasons, but this does not automatically invalidate their claim for asylum. If they are starving, they can hardly be blamed for boarding a boat in the hope of finding a safe haven, nor should we forcibly return them to the same fate. They deserve humane treatment and fair consideration of their cases, just like other asylum seekers.
Nevertheless, the Murdoch press is now backing the call to expel Sri Lankan asylum seekers. Last week Sydney’s Daily Telegraph ran an article based on information supplied by the Sri Lankan Navy, which claimed that “most of the 2,279 people arrested leaving on 52 boats this year … were ‘economic migrants’ looking for a better life in Australia”.
The implication was that these people were comfortably off, and had taken a devious way to an easy life by entering Australian territory on asylum seeker boats. The article claimed that the group included 100 businessmen, 179 fishermen, 27 government workers, 87 drivers, 158 labourers, 15 electricians, 87 farmers and 43 masons. It seemed to assume that people in these employment groups were comfortably off, and were not refugees.
Apart from the fact that a total of 696 out of 2,279 is hardly a majority, anyone in those occupations could have been a genuine refugee for safety and/or economic reasons. The article also accepted without question the Sri Lankan Navy’s ridiculous claim that they boarded asylum seeker boats because of the “success rates” of Australia’s asylum processing claim system.
It failed to explain why anyone who is well off and not classified as a security risk would risk their life on a leaky boat, instead of just applying for a visa and catching a plane, with the prospect of being released into the Australian community after minimal delays for processing.
Moreover, there is now evidence that the Sri Lankan government is classifying anyone who leaves by boat, including anyone who does so for economic reasons, as a potential security threat. Asylum seekers classified as economic refugees in Australia and forcibly returned to Sri Lanka in the past have been routinely subjected to prolonged interrogation. Some have been tortured and imprisoned.
One wouldn’t wish to be a wet blanket as far as the High court judgment is concerned. It was a great day for the asylum seeker concerned, and the case has important implications for others in a similar predicament. But it’s just a small step in the long, difficult but vitally important struggle to obtain justice for a desperate and long-suffering people who seek our help.
Next article – The life and death of Arthur Murray
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