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Foundering justice

Why should two young African men, seeking protection from persecution and stowed away on a foreign ship berthed in an Australian port, be allowed to disembark and make claims for refugee status?

To those with some knowledge of Australia’s obligations and responsibilities under various human rights instruments, the issue may seem too elementary to warrant inquiry. For those with a less legal bent, but with a sense of justice and common humanity, the answer may seem equally straightforward.

However, events which unfolded in January this year, at ports in Launceston, Corio Bay and then Fremantle, point to a radical shift in Australia’s response to asylum seekers arriving on our shores.

More on this later.) These events mark a further—and alarming—twist in Australia’s retreat from its commitment to compliance with the solemn protection obligations enshrined in international instruments, such as the 1951 Refugee Convention, to which we remain a signatory.

These days, talk of ships and asylum seekers is likely to stir memories of the dramatic events involving the MV Tampa in September 2001. You will recall that in a sudden, radical pre-election reversal of policy, 433 people seeking sanctuary were interdicted from Australian waters. They were then diverted to be detained and ‘processed’ in poor Pacific nations.

Construction of the new so-called Border Protection strategy saw the urgent erection and mplementation of the policy of ‘excision’. Put simply, parts of Australian territory that are commonly the first destination of asylum seekers arriving by boat were erased (‘excised’) from the ‘migration zone’—the area in which the Migration Act applies. The intent and effect was that no person arriving in such places could make a valid application for refugee status (or any other visa) at all. To date, this new dehumanised zone—a place where international human rights are only respected in part, or not at all—applies to only a small amount of Australian territory situated off the far north-west coast of the mainland (Christmas and Cocos islands are cases in point). The government’s application for ‘planning permits’ to extend the ‘excision’ and Border Protection program to allow the erasure of the entire expanse of northern Australia has been rejected by parliament. Most of Australia, at least on the statute books, remains unexcised.

This makes the following events even more disturbing and controversial.

On 12 January 2003, the MV Dorine, a Polish bulk carrier flying the flag of Cyprus, berthed in Bell Bay, Launceston. It had sailed from Port Elizabeth, South Africa, and had been at sea for 21 days. On board were two men of African descent who had stowed away on the ship. It appears that they were interviewed by various parties, including Australian Customs and Immigration officials, and also by maritime union officials concerned for their welfare.

It soon became clear that the two African men wanted to disembark, seek legal advice and claim refugee status. They were seeking protection from feared persecution in their home countries. While the ship remained docked in Bell Bay, it also became apparent, from media and other reports, that the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) had determined that the two men should not be allowed to leave the ship while it was in Australia. In other words, despite their fears, the men should not be permitted to make applications for refugee status.

The Dorine next sailed to Geelong, where it berthed at Corio Bay on Saturday 18 January 2003—within the (non-excised) migration zone. The two asylum seekers were still on board.

The evening was sultry and grey—a spectacularly unassuming setting. Toge­ther with another lawyer, Eve Stagoll, I boarded the Dorine. After some time, we were able to meet the two African men. Each informed us that they had a well-founded fear of being persecuted in their home countries and that they wished to apply for refugee status in Australia. Over the next few hours, we helped them prepare valid applications for refugee status, which we lodged with DIMIA the next day. The two men were not allowed to leave the ship with us. The captain of the ship had been served, by DIMIA, with a legal notice that prohibited release of the men from the ship—under threat of serious penalties.

The following day, DIMIA accepted that the two asylum seekers had now made valid applications for refugee status—the lodgment of the applications finally triggered the decision to permit their release from detention on the ship and onto Australian soil. This acceptance represented a complete reversal of the department’s previous position. It also made it abundantly clear that to effect this result, it had not only been necessary for legal advisers to board the ship, seek access to and assist these men, but at no time prior to DIMIA’s receiving the applications had there been any intention of allowing the men to leave the ship, or otherwise present their fears of persecution and have them properly considered before the ship set sail for international waters.

The Dorine has since sailed to other jurisdictions, and the two men are now being held in immigration detention, where they must remain throughout the determination of their cases.

That this was not an isolated event or strategy by DIMIA is made clear by what happened on the other side of Australia on Friday 24 January.

Another foreign ship was berthed in Fremantle, apparently set to sail within two hours. On board was an Iraqi national. He also wanted to apply for asylum in Australia. Again, he had not been able to do so. And once again, it appears that the ship had been served with a departmental notice forbidding the release of the Iraqi man from the ship.

A similar chain of events followed—with some stark and ironic differences.

A legal adviser managed to obtain access to the asylum seeker on the ship and helped him prepare and lodge a valid application for refugee status before the ship set sail.

While the application was being prepared, in the very same port, Australian Naval ships were being farewelled as they set off for the Gulf and a possible war with Iraq.

Meanwhile, it was necessary for a team of lawyers in Melbourne to appear before a Federal Court judge at around 7pm that evening to seek an injunction to ensure that the ship did not sail without DIMIA agreeing to allow the asylum seeker off the ship and onto Australian soil so that he could have his case for protection against Iraqi persecution properly and fully considered.

Have we witnessed in these two events a new and even more radical shift in the government’s post-Tampa policy toward asylum seekers?

In the past, it appears that the government’s policy toward asylum seekers who arrive in Australia as stowaways has been to allow them to disembark and make applications for refugee status.

This policy was unsurprising and certainly uncontroversial, given that the right to seek and enjoy asylum is contained in a number of human rights instruments—including, most notably, Article 14(1) of the Universal Declaration of Human Rights: ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’ It is also clear that, as a signatory to the Refugee Convention, Australia’s core obligation to any asylum seeker in its territory is to ensure that she or he is not expelled (‘refouled’) back to a situation of potential persecution. Other human rights instruments to which Australia is a signatory similarly prohibit states from placing people in situations of dire risk of human rights abuse. As a matter of international principle, an asylum seeker who arrives in a territory seeking asylum has rights. The rights include consideration of whether or not she or he requires and deserves protection. Put simply, these rights are accorded on the assumption that the person may be a refugee; not that he or she is not a refugee.

Further, while states, as sovereign nations, clearly have the right to protect their territory, including their borders, the arrival of asylum seekers within those borders simultaneously invokes certain international responsibilities and obligations. As observed by Professor Guy Goodwin-Gill, while it may be a fundamental principle of international law that sovereign nations are entitled to exclusive jurisdiction over their territory and persons therein, such authority also carries certain responsibilities. They include the responsibility to guarantee and protect the human rights of those persons within the territory and under the state’s authority. (For more information see The Refugees in International Law, 2nd edition, G.S. Goodwin-Gill. Oxford University Press, 1996.) In order for the right to seek and enjoy asylum to be a meaningful right, it must include the right to make an application for asylum before any action is taken to remove the person from that jurisdiction.

These two recent events involving stowaway asylum seekers point to an alarming post-Tampa strategy of the government, in which ships’ captains will not be permitted to let people seeking asylum leave the ship while it is in Australian territory, regardless of whether it is an excised or non-excised place.

Many questions concerning international human rights law and the precise scope of protection guaranteed to asylum seekers under the Refugee Convention are complex. They don’t lend themselves to easy solutions. However, the two recent ‘stowaway’ cases do permit elementary analysis. It does not matter whether the asylum seekers will ultimately be found to meet the UN definition of a refugee. The critical point is that, in each case, they have an incontrovertible right to seek asylum in Australia and to have their cases fully and properly heard in Australia. The apparent decision to prohibit them from doing so is unambiguously in contravention of our international obligations and responsibilities.

Were all other countries to adopt such policies and practices, the international framework designed to protect refugees would be so seriously undermined as to be rendered meaningless. And from an ethical standpoint, such practices seem to have cast our country’s commitment to justice, fairness and decency out onto the high seas. 

David Manne is a lawyer and co-ordinator of the Refugee & Immigration Legal Centre.



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