Opinion archive 2012Other opinion pieces

  • Rachel Ball

    ‘Screening out’ asylum seekers undermines rule of law and risks returning people to face torture

    20 December 2012

     

    The Australian Government risks perpetrating grave human rights violations when it ‘screens out’ and returns asylum seekers before their cases have been properly assessed.  

    Processes under the Migration Act exist to determine whether asylum seekers require Australia’s protection from torture or persecution, but ‘screened out’ asylum seekers never make it through the gate. They are denied access to the Australian legal system. Instead, they are interviewed with no legal advice, no information about their rights, no transparency and no independent review. The Government appears to be using a quick and dirty process to bypass fundamental human rights protections.

    The closest equivalent in the criminal justice system would be if a police officer conducted the initial police interview of a suspect without a lawyer present, decided that the suspect was guilty and so dispensed with the courts, judges, juries, rules of evidence and appeals mechanisms and just sent the accused to prison.

    The Government’s claims that screening out is ‘consistent with our legal obligations’ and ‘what we do at airports every day when people arrive without a visa’ are disingenuous and dangerous.

    A tourist who has forgotten to apply for a visa is not in the same position as a Tamil who has fled Sri Lanka by boat. In the first case the return home might mean the early end to a holiday. In the second case the risks are much more profound and we should be extremely cautious about involuntary return.

    Of course it is not illegal to send someone home if they do not engage our protection obligations under the Refugee Convention or other human rights treaties.  However, we don’t know what risks are faced by many of the Sri Lankans who have been screened out.  More importantly, neither does the Australian Government. Secret screening out interviews cannot do the job of the legal system.

    Some of those who were screened out may have been ‘economic migrants’ and could be returned safely, but how would we know? We don’t know what questions are asked in the screening out process and we don’t know what answers are given.  We do know that many of those who have been returned are immediately imprisoned and left at the mercy of those they claim to fear.

    What if the officer who decides that a person should be screened out gets it wrong?  More often than not they do. More than 80% of protection visa refusals are overturned following independent review.  In those cases, had it not been for a review process, the Australian Government would have sent the person back to their country of origin to face serious human rights abuses.

    It is a grave violation of international law, known as ‘refoulement’, to deliver a victim of abuse back into the hands of their persecutor. Refoulement is a real risk when people are involuntarily returned to Sri Lanka.  The end of the civil war has not put a stop to serious human rights violations in that country.  Reputable reports – including by the US State Department – show that arbitrary arrest, detention and torture are still systematic and widespread, particularly against the Tamil minority.  The Australian Government has itself raised concerns about disappearances and torture in Sri Lanka in the UN Human Rights Council and a conservative Canadian Government has threatened to boycott a Commonwealth Heads of Government meeting in Colombo next year unless there is substantial improvement in the protection of basic rights.

    Earlier this year, Human Rights Watch reported on 13 cases of alleged torture of failed Tamil asylum seekers who had been returned to Sri Lanka by the UK.  One man told Human Rights Watch about his torture at the headquarters of the Criminal Investigation Department in Colombo and at an army camp in northern Sri Lanka. “I was hung upside down and beaten with truncheons and hot metal rods. I was stripped naked in both detention sites. I was sexually abused on two or three occasions in Vavuniya. The perpetrators were uniformed army personnel.” These claims were supported by medical evidence. When Australia returns a Sri Lankan who has been ‘screened out’ they are delivered directly into the custody of the Criminal Investigation Department.

    The Refugees Convention had its genesis in the international community’s recognition of the catastrophic consequences that flow from closing our eyes and our borders to those in need of protection.  While not every person who comes to Australia by boat is a refugee, the majority are. We should be scrupulously diligent about ensuring that those persons are not inadvertently returned to torture or persecution; a real risk associated with a screening out system that sidesteps due process.

    Given the stakes, surely it is reasonable to expect an open and fair system.  The process already set out in our migration laws would be a good start.

    Rachel Ball is the Director of Advocacy and Campaigns at the Human Rights Law Centre www.hrlc.org.au. She is on Twitter: @RachelHRLC