Refugees suffered but Australian high seas policy legal

In June 2014, more than 150 Tamil asylum seekers sailing close to the Australian territory of Christmas Island used a satellite phone to call refugee groups on the mainland.  

Their vessel had engine trouble and they needed assistance.  

Suddenly, all contact ceased.

The resulting court case has once again focused attention on Australia’s immigration policies, raising significant questions about the government’s treatment of refugees seeking protection.

Government secrecy

As relatives feared for the safety of their loved ones, the authorities repeatedly refused to confirm what had happened to the craft, or those on board.

Only after legal action was brought in the Australian High Court, eight days later, did the government break its silence. It confirmed that a boat had been intercepted and that all onboard were being detained somewhere at sea.

“If it wasn’t for this [legal] case, no one would have even known we existed,” one of the asylum seekers, a young mother, later said.

There were women and children on the boat. There were people who were sick and people who had heart problems. We all suffered a lot.

by Sri Lankan asylum seeker and plaintiff

Australian territory in the Indian Ocean

The boat was picked up on June 29, 2014, as part of Operation Sovereign Borders, the Australian government’s security operation whose stated aim is border protection and to fight against people smuggling.

Initially relieved and grateful to have been found, it soon became clear that the tired and unwell passengers were not, in fact, being rescued. Instead, they were to be held at sea, on a customs vessel, while the authorities tried to return them to India.

The plaintiff in the legal action subsequently brought against the Australian government cannot be named for legal reasons and is referred to here as Dinesh.

Dinesh gave a detailed account of what the men, women and children experienced during their ordeal. 

He originally fled to India from Sri Lanka with his wife and children after receiving death threats due to his involvement in local politics.

“In Sri Lanka we lived a very terrible life. Authorities came to my house and beat me. They threatened to shoot me just for standing up for my political beliefs,” he told lawyers from the Melbourne-based Human Rights Law Centre (HRLC), assisting in the case.

Once in India, which is not a signatory to the 1951 Refugee Convention, the Dinesh family were unable to obtain legal status, denying them access to work or education.

“It was like we were hiding. We couldn’t stay,” he explained.

He took the desperate decision to board a boat, seeking “an ordinary life, somewhere safe”, for his family.

In total, 157 Tamil asylum seekers were onboard when the vessel was seized at sea by Australian customs. The passengers included 50 children, the youngest just 12 months old.

“There were women and children on the boat. There was even a pregnant woman. There were people who were sick and people who had heart problems. We all suffered a lot.”

“I was locked in a room with 80 people. I was kept apart from my wife and children and was very worried about them,” Dinesh said.

For no less than 21 hours a day, the asylum seekers were locked in windowless rooms. They were never asked why they had left Sri Lanka, then India, nor were the risks they could face if returned, discussed.

While the first priority must be on ensuring lives are saved, it is also essential to ensure that such people ... are swiftly and individually screened.

by Thomas Albrecht, UNHCR regional representative

After almost two weeks, nine adults and two children were removed from the rest of the group. The adults were told that they would have to navigate orange lifeboats, each filled with up to 60 asylum seekers, to India.

None of the adults had experience in sea navigation. Despite having only basic level English, instructions were not given in their native language. When the asylum seekers refused to take responsibility for the safety of others in the lifeboats, they were told they had no choice but to obey.

Meanwhile, the immigration minister at the time, Scott Morrison, flew to New Delhi attempting to secure India’s agreement to accept the return of the Sri Lankan asylum seekers. He failed.

The rights chasm

The executive director of the Human Rights Law Centre (HRLC), Hugh de Kretser, spoke to Al Jazeera of a widening gap between Australia’s international and domestic human rights obligations and practices.

“The fundamental obligation under the Refugee Convention is to not return people, directly or indirectly, to harm,” de Kretser said.

“You can’t comply with that obligation if you return asylum seekers without asking why they are fleeing.”

The high seas detention ended when Dinesh and the others held aboard the customs vessel were sailed back across the Indian Ocean to the Australian territory of Cocos Islands. They were then flown to the remote Curtin Immigration detention centre on the Australian mainland.

As lawyers were making arrangements to visit the detained asylum seekers, they were secretively put on an overnight flight to a detention centre on the Pacific island of Nauru, where the majority remain at this time.

Cruelty not essential

On January 28, 2015, Australia’s highest court ruled, in a narrow 4:3 majority decision, that the detention-at-sea was lawful under Australian law.

“Unfortunately, this decision confirms that our domestic law allows the government to breach our international obligations,” de Kretser said.

He maintains there are more compassionate ways of dealing with asylum seekers which cause less suffering and will be more effective in the long-term.

“We can stop deaths at sea without inflicting cruelty on refugees who survive the risky boat journey. Providing safe and viable pathways to protection within our region will address the reasons why refugees get on boats. This is where our focus should be,” said de Kretser.

The United Nations High Commissioner for Refugees (UNHCR), which intervened in the case, released a statement following the ruling noting the agency’s “deep concern” at the practices of “interception at sea, detention and removal of individuals who may be seeking Australia’s protection”.

Thomas Albrecht, a UNHCR regional representative in Canberra, told Al Jazeera: “As the recent tragic loss of refugee and migrant lives in the Mediterranean has shown, people continue to risk extremely dangerous boat journeys in search of safety.”  

“While the first priority must be on ensuring lives are saved, it is also essential to ensure that such people, once rescued or intercepted, are swiftly and individually screened for any protection needs.” 

The Australian government welcomed the landmark decision, maintaining that it vindicated the legality of its actions.

“The government welcomes the decision of the High Court that the plaintiff was lawfully detained by the Commonwealth under the Maritime Powers Act 2013,” a spokesman for the minister for immigration and border protection, told Al Jazeera. “The government is committed that no IMA [Illegal Maritime Arrivals] will be settled in Australia.”

Future still uncertain

A total of 15 boats containing 429 asylum seekers have been turned back since the Australian government enacted its Operation Sovereign Borders (OSB) policy, according to government figures. 

Most of the Tamil asylum seekers remain in the Nauru camp, part of the policy to process all asylum seekers in offshore detention centres.

They have been given no timeframe for the processing of their applications and remain unsure as to where and when they will be resettled.

The conditions on Nauru have been described by the UNHCR as unsafe and inhumane.

“We are here in very bad conditions. We are still being put through hardship,” says Dinesh.

Dinesh, like the others held at sea, faces the prospect of eventual resettlement in Nauru or Cambodia, under a controversial deal between the Australian and Cambodian governments.

As for his hopes for the future, he tries to remain positive: “Our lives are in the hands of Australia and its leaders. We still hope they will give us a secure future.”