Asylum-seekers back to where they started
Publisher: The Australian
Story date: 09/12/2012
Language: English

The government's new ploy is to deport many Sri Lankan arrivals – and quickly

THE government's quest to conquer the surge in asylum-seekers has moved into a new and dangerous phase. Its controversial new approach to identify and send home those Sri Lankans deemed to be non-refugees has triggered what may become a defining battle in its efforts to bring the asylum-seeker issue under control before the next election.

What makes this latest tussle between the government and the refugee advocacy movement so explosive is that the government has finally stumbled on a devastatingly effective solution to undercut the largest group of asylum-seekers, those from Sri Lanka. In the past three months more than 3500 people have arrived by boat from Sri Lanka.

By applying carefully scripted screening methods to new Sri Lankan arrivals, the government has been able to return more than 600 Sri Lankans to their homeland since September on the grounds that they did not claim protection and therefore were deemed to be economic refugees rather than genuine asylum-seekers.

The government won't easily surrender this unexpected advantage in a war that it has been losing since 2007.

``Yes, it's controversial, but it is entirely appropriate,'' says Immigration Minister Chris Bowen.

``With the pattern of the increasing number of Sri Lankan boat arrivals in the last several months we are determined to arrest this trend. Returning people to Sri Lanka involuntarily who are clearly economic migrants and raise no issues that engage Australia's international obligations is one element of this concerted effort.''

But the government is also living dangerously because it has refused to allow the courts to test its new approach, including in the High Court this week, a move that suggests it doubts the legality of its own policy.That is certainly the belief of the refugee movement, which has tried to involve the courts, accusing the government of breaching its international obligations by returning Sri Lankans to their home country without due process.

``I am not saying that they are genuine refugees, I am saying that we don't know because they have been denied due process,'' prominent refugee lawyer David Manne says. ``If the government is confident it has got it right then it would welcome independent scrutiny of its practice.''

The seeds of this conflict were sown in June this year when immigration officials were taken aback by the soaring number of Sri Lankans arriving on boats. In that months 620 Sri Lankans arrived – more than any other nationality – compared with none in January.

In July, when the figure rose to 700, Bowen knew it was no fluke.

Immigration officials noticed that unlike previous arrivals from Sri Lanka, a large proportion of new arrivals were Sinhalese rather than from the Tamil minority, which was on the losing side of that country's civil war and therefore had more legitimate claims for protection.

Intelligence gleaned from Australians officials and security services indicated many of those coming to Australia were doing so for economic reasons.

At about this time, Bowen issued what he later described as ``a directive'' to Immigration to find a way to better weed out the economic refugees.

``That's certainly the directive I've given the Department of Immigration,'' he revealed on October 27. ``That where people have made no credible claims for asylum then they should be progressed and removed from Australia as soon as possible.''

What Bowen did was revive and elevate the importance of the longstanding screening interview used by immigration officials on asylum-seekers. This process, which has been in place since 1994, usually occurs within 24 hours of someone's arrival in Australia. It involves immigration officials asking the new arrival why they have come here and what their circumstances and background are.

If the asylum-seeker makes a claim for protection from persecution in their homeland then they are ``screened in'' to Australia's immigration process along with all the legal rights that brings. But if they say they have arrived to look for work or for other economic reasons, or they do not make any claim for protection, then they can be ``screened out'' and deported back to their homeland.

In most cases, deportation is not an option even if they are screened out because many countries – such as Iran – refuse to accept them back. But Sri Lanka is a rare case where it will accept returned boatpeople, making them ripe for the screening out process.

In the past, however, the threshold used in screening interviews has been a lenient one, the assumption being that people have not risked their life on a boat journey without genuine fear for their safety in their homeland. Unless they made it abundantly clear they came here only for money, the status quo was that they would be screened in to Australia so their situation could be more carefully assessed.

What appears to have happened – although the government will not admit it publicly – is that it has quietly reversed that status quo, now requiring asylum-seekers to make an overt claim for protection in that initial interview or face deportation.

Says Manne: ``In the past it has proceeded on the general assumption that people will want to make a claim for protection from persecution and the next step was almost always to (screen them in and) let them present their claim for refugee protection under due process.''

What this means is that unless the Sri Lankans make an overt claim for protection in their initial interview, which can be as short as 20 minutes, they are screened out and returned home, often within days of arriving.

The interview decisions are not provided in writing and boat arrivals are not advised of their right to legal representation or, often, why they are being interviewed.

Government says its screening process is fair and entirely consistent with its international obligations, while refugee advocates say it denies asylum-seekers due process and exposes them to arbitrary decision-making.

The problem is that there is no way of independently assessing the fairness of the government's new approach. It refuses to divulge details of the screening process, except to say that it is fair.

Government sources are adamant the questions posed during these interviews have not changed this year, but they refuse to discuss further details or explain how, if nothing has changed, more than 700 people can suddenly be screened out within months compared with only a handful last year.

Asylum-seeker advocates want the process subjected to independent scrutiny. ``There has been a radical deviation from normal practice,'' says Manne. ``This practice seems to have arisen in the context of yet another crisis in refugee policy.''

Government sources say privately they cannot divulge the process of the screening interviews because it would offer a ``how to'' guide for boat arrivals to say the right words to be screened into the formal assessment process.

Former Howard government immigration minister Philip Ruddock agrees.

``If a person makes no claims and doesn't seek to engage your protection obligation and they were here unlawfully you would remove them,'' he tells Inquirer. ``What surprises me is that what I would have thought is standard practice is seen to be unique. I don't see that one needs to prompt them as to what they might want to say if they thought that's what you need to say in order to remain here.''

But asylum advocates warn that the opaque nature of the process allows the government to get away with unethical or even illegal behaviour without scrutiny.

They argue that asylum-seekers, who have escaped authority in their own countries, are often too nervous or lack the self-composure when confronted by Australian officials to state their case clearly under initial questioning.

``The government has shown itself to be sufficiently ruthless to resort to anything to justify the solution,'' says Ian Rintoul, spokesman for the Refugee Action Collective.

On Wednesday, Refugee Council of Australia chief executive Paul Power wrote to Bowen to say information he received about the recent forced return of Sri Lankans suggested they were screened out despite expressing fears about their safety in Sri Lanka.

``The information given to me suggests that the people involved did raise fears which warranted further investigation,'' Power wrote.

The government's speedy return of those Sri Lankans who have been screened out (which still accounts for only one-sixth of all Sri Lankan arrivals) have caught refugee advocates on the hop. Sri Lankans often have been whisked back home within 48 hours of their arrival, before they appear on any databases or can be contacted by refugee groups.

This appears to be a deliberate strategy aimed an ensuring that the process is not subject to legal scrutiny. When the lawyers do get involved, the government retreats.

Michaela Byers, a migration law expert, says since July she has represented 16 Sri Lankans who had been screened out but each time she went to bring the cases to the Federal Magistrates Court, the government changed its mind, allowing them to stay in the country.

``We've never had the chance to test this procedure in a court, they never let it get that far,'' she says.

Similarly when refugee lawyers went to the High Court this week to challenge the screening out of 56 Tamil men, the government retreated, giving the men another chance at proving their asylum claims.

After the High Court's rejection of the Malaysia Solution last year, the government is wary of subjecting itself to a legal ruling that may close down its ability to send large numbers of Sri Lankans home. Instead, it intends to try to deport screened-out Sri Lankans quickly before refugee lawyers can act.

The opposition does not oppose the deportations – it argues that all boats from Sri Lanka should be turned back.

But opposition immigration spokesman Scott Morrison says this controversy is Labor's fault because it was the consequence of flawed border protection policies.

``Once again, this screening-out policy has always been an injunction waiting to happen,'' he says.

There is no sign of a solution in this stand-off over Sri Lankans arrivals, which are now running at 1200 a month.

The government hopes the sight of so many Sri Lankans returning home will destroy the sophisticated people-smuggling networks that have emerged there, powered by smugglers who make false claims about work opportunities in Australia.

``With more than 700 Sri Lankans returned both voluntarily and involuntarily within the last couple of months, we'd like to think it is starting to make a difference, but people-smugglers will continue to do everything they can to maintain their trade,'' says Bowen.

But Rintoul says his group will use the courts to try to stymie the government's new approach.

``We will continue to do this case by case as long as it is necessary,'' he says.

The scene is set for a prolonged battle between those who believe the government is playing tough but fair in its bid to slow down the flow of asylum-seekers, and those who fear the end is now justifying the means.

Refugees Daily
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Compiled by Media Relations and Public Information Service, UNHCR
For UNHCR Internal Distribution