Australian court upholds refugee imprisonment at sea

Sydney, Australia – In a test case that has further solidified Australia’s zero-tolerance stance towards asylum seekers travelling by sea, the country’s highest court has upheld the government’s practise of imprisoning refugees on vessels in foreign waters.

The case was launched by a Tamil refugee, who cannot be named for legal reasons, currently detained in an Australian detention centre in the tiny Pacific island nation of Nauru. Known as CPCF, the refugee was one of 157 men, women and children intercepted at sea aboard an Indian-flagged vessel in June and then taken back to Indian waters aboard an Australian customs ship.

CPCF was held on the boat for nearly a month while Australia unsuccessfully attempted to return him to India before he was eventually transferred to Nauru.

“The Court held, by majority, that the detention was lawful under s72[4] of the Maritime Powers act,” the High Court said in a statement released on Wednesday.

It added that customs officials had not erred by failing to ask the plaintiff if he was seeking asylum under Australia’s international obligations as a signatory to the UN Refugee Convention, because he was intercepted in a contiguous zone that is more than 12 nautical miles from Australian land territory.

Australia won't extradite convicted murderers to countries with the death penalty, but ... wants to send men, women and children back to a place where they fear serious harm or even death? It is breathtakingly inconsistent. How can they justify that?

by George Newhouse, lawyer

Vindicated policy?

Immigration Minister Peter Dutton said the judgement “vindicated” a controversial policy used by his centre-right coalition to stop irregular boats, which has reportedly seen hundreds of asylum seekers drown at sea and thousands more clog up Australian detention facilities.

“It is six months since the last illegal boat arrival,” Dutton said on Twitter. “In 2014 there was just one successful people smuggling venture.”

CPCF could not be reached for comment. However, his chief legal representative, human rights lawyer George Newhouse, told Al Jazeera that CPCF “expressed sadness and disappointment” on hearing the verdict.

“He is also very concerned about the fate of his young family being detained on Nauru, because the conditions are incredibly unhealthy and the kids on the island are contracting diseases. I have another client whose child contracted tuberculosis on Nauru,” Newhouse said.

A descendant of European Jews who were mostly wiped out during the Holocaust, Newhouse said he took the case on a pro-bono basis because the Tamil asylum seekers were at risk of being returned to their alleged persecutors in Sri Lanka.

“With my family history, I found that risk untenable. I could not in good conscience see a group of Tamils returned to their persecutors either directly or indirectly through India.

“Australia won’t extradite convicted murderers to countries with the death penalty, but the Minister for Immigration wants to send men, women and children back to a place where they fear serious harm or even death? It is breathtakingly inconsistent. How can they justify that?”

Tamil Refugee Council spokesman Aran Mylvaganam said CPCF’s claim for asylum continues to be valid despite this month’s shock election result that saw former President Mahinda Rajapaksa – the leader who crushed the 26-year-old insurgency of Tamil separatists – voted out of office.

“Tamils in Sri Lanka still face many problems because the military has a huge presence in the north of the country where the Tamils live,” said Mylvaganam, who arrived illegally in Australia in 1997 at age 13 after his school was bombed by the Sri Lankan military. His brother did not survive the attack.

“There’s land grabbing, military checkpoints everywhere, and anyone who is thought to have past links to the Tamil Tigers like war widows are constantly harassed,” he said.

“The new president,” he added, “was acting defence minister during the war and has blood on his hands too, so I think their reasons for fleeing Sri Lanka are genuine. I myself would love to go back and see my homeland, but after a newspaper there called me a terrorist for working with refugees in Australia, I would not feel safe doing so.”

Dangers of return

In July, Newhouse’s legal team won an injunction to stop custom officials from repatriating CPCF’s group to Sri Lanka on the basis that he was entitled to have his allegations against the Sri Lankan government heard and processed in accordance with the law.

The injunction was granted just hours after Australia confirmed another group of 41 asylum seekers had been returned to Sri Lanka. Sri Lankan police said all 32 adults in the group where charged with illegal migration offences that carry a maximum imprisonment of two years. However, the Tamil Refugee Council said 11 among them were tortured on their return.

“In one way the case has achieved a lot for our clients because they were not returned to Sri Lanka,” Newhouse said.

“Sadly they are now in Nauru in quite difficult circumstances, but at least they are having their claims for refugee status accessed, which is what the government was trying to avoid. So while I’m disappointed in today’s decision, we lost by a very narrow margin, a three to four decision, so it’s not a green light for the government to do anything they want on the high seas.”

However, Donald Rothwell, who teaches law of the sea at the Australian National University’s College of Law, said the decision has significantly strengthened the government’s stance – despite the narrow outcome.

“It will give the Australian government a great deal of confidence that it is on solid legal ground in relation to detaining people at sea and to take those persons to another place,” he said. “Whether that means they can [be] taken directly back to the place they came from, well, that is hypothetical. What I can say is that their ability to take these kinds of actions has been strengthened.”

CEO of the Refugee Council of Australia Paul Power concurred.

“What is clear from the decision is the government can get away with doing whatever it wants to refugees in stark contrast to countries like the UK, which doesn’t detain children for any longer than seven days, and that’s consistent with the international approach,” he said.

“Yet, in Australia, refugees of any age can be detained indefinitely for administrative reasons that have nothing to do with their backgrounds, just the fact that they arrived without permission.

“And now they’ll be able to use the same practise to detain them at sea. There’s no justification to detain people in those conditions for an extended period of time. It seems there are no limits to the cruelty of the Australian government’s action in relation to asylum seekers.” 

A request for comment from the Ministry of Immigration was not answered by publication time.