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Australia in the dock

While there are some encouraging signs that the European Union (EU) may seek to reform its controversial refugee policies under a new European Commission, Australia’s own notorious approach to the “boat people” is currently being scrutinised by the country’s High Court. The High Court’s verdict on asylum seekers could have a significant impact on the future of Australia’s refugee policy.

The case revolves around 157 Sri Lankan Tamil asylum seekers, who were attempting to make their way to Australia by boat from the Indian Territory of Puducherry in June. When the boat encountered engine problems close to Christmas Island, they were intercepted by Australian authorities. In accordance with the country’s policy of detaining and processing the applications of asylum seekers away from the Australian mainland,  they were held at sea while the government tried to decide what to do with them. Spurred by revelations that the Australian government had previously handed a group of intercepted Sri Lankan asylum seekers back to the Lankan navy, lawyers went to the high court to argue that the government’s treatment of the Tamils was illegal. They succeeded in obtaining an interim injunction against the transfer of the new batch of  asylum seekers to Sri Lanka, but the Australian government instead sought to have them returned to India through a special bilateral agreement. When the asylum seekers refused to speak to Indian consular officials, Australian authorities moved them to an offshore detention centre in Nauru without informing the lawyers representing them. The Indian High Commission in Australia has since clarified that India had only agreed to the return of those asylum seekers whose Indian citizenship could be verified.

The arguments made by the asylum seekers’ lawyers strike at the very heart of the Australian refugee system by questioning its two main strategies, aimed at minimising the number of refugees the country has to accept: the practice of processing migrants’ asylum applications on the high seas or in offshore centres, and the various bilateral deals through which confirmed refugees are “resettled” in nearby countries such as Papua New Guinea and Nauru. Similar to the EU’s policy of insulating wealthier member states from African asylum applications, this is an unabashed attempt by the Australian government to relieve itself of its international responsibilities. Importantly, this is not only a responsibility towards the refugees themselves, but also to the international community at large. By deliberately attempting to reduce the number of refugees it has to take in, the Australian government is effectively making the issue of housing refugees “someone else’s problem.” The argument that this treatment is only applied to those who seek asylum in Australia through “illegal channels” is disingenuous and legally problematic, as the 1951 Refugee Convention (to which Australia is a signatory) states that refugees should not be penalised on account of their illegal entry into the country, since they often have no other choice.

Australia’s refugee policy is not unique among developed countries, as even historically refugee-friendly countries such as Canada have implemented mandatory detentions for asylum seekers. It stands in sharp contrast to Sweden, which does not penalize asylum seekers who enter the country unlawfully, and provides accommodation, rather than detention, to those whose asylum status is yet to be determined. Of course, Sweden’s geographical position makes it less exposed to migrants arriving through unofficial channels. The fact that Australia is so determined to insulate itself from further asylum applications despite housing such a low per capita percentage of refugees, when significantly poorer countries are doing much more, is still glaring.

As is often the case with refugee policy, the Sri Lankan Tamil case ultimately pits Australia’s national preference against its international obligations. High Court Judge Kenneth Hayne has noted the serious questions this case raises about the applicability of Australian versus international law. For a population that elected prime minister Tony Abbott, who campaigned on a platform of “stopping the boats,” the outcome of the case may be deeply uncomfortable, even if it vindicates the rights of the migrants.

One could argue, however, that this is precisely the role of the judiciary system in these situations: to protect the rights of the outsiders and minority against the “tyranny” of the majority. In this way, the Australian High Court may well uphold the country’s international obligations in spite of its domestic preferences.

Katharina Obermeier is an intern with Gateway House: Indian Council on Global Relations. She is currently pursuing an MPhil degree in International Relations at the University of Oxford. 

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