This article was first published in The Guardian Australia.
In July this year 157 Tamil asylum seekers, including 50 children and a heavily pregnant woman, spent a month detained on an Australian customs ship. While the high court of Australia will this week consider the lawfulness of their treatment, the broader story of their attempt to reach Australia reveals much more about how our refugee policies are failing us.
The lead plaintiff in the case, who for legal and safety reasons can only be identified as CPCF, is a Sri Lankan Tamil who initially fled to India before trying to reach Australia.
While we shouldn’t necessarily assume that everyone on the boat with CPCF genuinely needed Australia’s protection, it was absolutely wrong for the government to assume they didn’t and to seek to send them straight back. The only way to ever know for sure is to properly, fairly and individually assess claims.
CPCF fled Sri Lanka after receiving death threats from his involvement in politics. He was beaten inside his own home and told he would be shot, so he and his young family escaped to India.
India is not a signatory to the refugee convention. It does have a decent history over the last few decades of protecting Tamils fleeing Sri Lanka, but more recently others have been less fortunate. CPCF and his family were unable to obtain legal status in India, they did not have freedom of movement and they were unable to work. India did provide them with a short-term solution – a temporary reprieve from imminent danger – but it gave them no status, no future and no guarantee they wouldn’t one day be returned to harm. So they boarded a boat and headed to Australia.
They were within sight of Christmas Island when their boat was intercepted. Those on board were transferred to an Australian customs ship, the Ocean Protector, where they were locked for at least 22 hours per day in windowless rooms. CPCF was held in a room with 80 other men, separated from his wife and children from 29 June to 27 July this year.
Meanwhile the immigration minister Scott Morrison headed to India, armed with autographed cricket bats, in an unsuccessful attempt to negotiate the group’s return. A plan was also made to dump the entire group in orange lifeboats to make their own way back to India – a plan fundamentally at odds with the government’s espoused concern for safety at sea.
After almost a month of not knowing where or when they’d be offloaded, the 157 were finally brought to Australia. Our legal team was arranging to go and visit them at Curtin detention centre when all 157 were suddenly and secretively taken to Nauru.
CPCF and his family remain detained in the Nauru camp. Their penalty for coming by boat is harsh and indeterminate. Ultimately, with no safety in Sri Lanka and no future or legal status in India, CPCF was trapped between a rock and a hard place.
Therein lies the fundamental flaw in Australia’s deterrence-based asylum policies – they just give people who lack options one less. The real issue is that there are over 10 million refugees in the world, the overwhelming majority of whom lack a safe and viable pathway to protection. Boat arrivals and deaths at sea are the visible symptoms of this underlying problem.
It’s an incredibly difficult problem to solve and Australia can’t do it alone. But intercepting and returning those seeking to come, violating the basic rights of those who arrive and slashing our humanitarian intake by 6250 places doesn’t help.
What would help is working with countries in our region to improve their capacity to host, process and resettle refugees. Not paying billions to warehouse asylum seekers in inhumane and unsafe conditions on Nauru and Manus Island. Not dumping refugees in Cambodia, a poverty-stricken nation with poor human rights record. But working with the United Nations refugee agency and transit countries like Indonesia, Malaysia and indeed India to improve local conditions for asylum seekers and develop their capacity to process and resettle them.
Australia also needs to shoulder a much greater share of the global protection burden. We currently host a tiny 0.3% of the world’s refugees, ranking us 67th relative to our population and 74th relative to our wealth. We can and should take more.
Improving conditions in transit countries, increasing our own intake and urging those with the capacity to do the same will help to reduce the need for people like CPCF to get on boats. In the meantime, everyone arriving should have their claims properly, fairly and individually assessed.
Harsher deterrence measures don’t help resolve the underlying predicament faced by people like CPCF and his family. What they really need is due process and a safe pathway to protection.
Australian policy is moving in the wrong direction on both fronts.
Daniel Webb is the Director of Legal Advocacy at the Human Rights Law Centre. He is on twitter at @DanielHRLC