PATTERNS AND TRENDS IN ASYLUM SEEKERS’ JOURNEYS

Baro River Gambela Source: By T U R K A I R O ([1]) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Baro River Gambela
Source: By T U R K A I R O ([1]) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)%5D, via Wikimedia Commons

 ‘There are a whole host of interlacing factors that have led us to believe this problem is unique to Australia. Being a geographically isolated island nation and the idea we are being invaded certainly feeds it. As does the fact that we have no strong human-rights discourse. We fill that void with law-and-order politics that frames the debate around illegal refugees and a helpless sovereign state.’

Professor Sharon Pickering of Monash University’s School of Political and Social Inquiry[1]

On 19th August 2013, just over a week ago, another boat carry asylum-seekers sunk off the coast of Australia.[2] Only two days earlier, a boat arrived packed with over 200 people.[3]  At the same time, Australia’s Immigration Minister, Tony Burke and Foreign Minister, Bob Carr, were in Jakarta discussing a regional solution to the people smuggling issue.

From media reports and the rhetoric of politicians it is entirely believable to think Australia is pulling more-than-its-fair share of weight in providing a welcome mat for asylum seekers. But is this actually the case?

Reasons for Fleeing 

In general, asylum seekers and refugees account for only a small proportion of the global movement of people.[4] These people are fleeing circumstances of war, violence, civil unrest, human rights abuses and/or persecution for who they are. As a consequence, they often do not have the requisite documentation, use unauthorized crossing points or retain the services of smugglers.

There was a significant increase in 2012 of the number of people seeking refugee protection in particular, there was an increase in numbers of asylum applicants fleeing the civil unrest and security issues in the Syrian Arab Republic.[5] The conditions under which they migrate in these circumstances are dangerous. They often have to travel in inhumane conditions, may be exposed to exploitation and abuse and have their lives placed at risk. Once they arrive at a host country, they are generally regarded as a threat to the country’s sovereignty and to their national security.

The number of people requesting international protection has fluctuated significantly between countries and years depending on the political development in countries of origin and also changes in asylum policies and practices in receiving countries. There are some common factors that tend to influence asylum trends including the existence of social networks of certain communities in destination countries, improved capacity to register asylum seekers and the fact that some countries are perceived as more likely to grant refugee status than others.[6]

Industrialised Countries

According to the UNHCR’s report on Asylum Levels and Trends in Industrialised Countries in 2012, an estimated 479300 asylum applications were registered in 44 industrialised countries in the past year.[7] This represents an increase of 8% from the previous year, the second highest level in the past decade. Afghanistan remained at the top of the list of source countries with approximately 36600 Afghans requesting asylum. This figure is comparatively equal to that recorded in 2011, reflecting the continued political instability in Afghanistan. Australia’s share of Afghan asylum applications in relation to the rest of the world is consistent with the previous two years at 8% of total applications.

These individuals are fleeing to industrialised and less developing countries around the globe. The top five receiving countries for asylum applications in 2012 were respectively, the United States of America, Germany, France, Sweden, and the United Kingdom.[8] These countries together accounted for more than half (57%) of all asylum applications received by industrialised countries.

Australia’s intake of asylum applications against the top 5 host-industrialised countries in 2012[9]

The USA tops the list for the seventh consecutive year recording 834000 asylum applications for 2012. This means that out of the 44 industrialised countries, it accounted for one in six claims lodged. These applicants originated mainly from China (24%), Mexico (17%) and El Salvador (7%). Furthermore, there was a recorded increase of 7400 claims on the 2011 figure, mainly accounted for by an increase in applicants originating from Egypt (+102%), Honduras (+38%), Mexico (+35%) and Guatemala (+24%). The continuing violence generated by transnational organized crime, gang-related violence and drug cartels in regions of Central America have been suggested as reasons for the higher number of individuals from this region submitting asylum applications in the USA.[10] The huge increase in claims originating from Egypt could be seen as a direct result of the dire political instability and violent protests persisting in the country.

In comparison, Germany was the main recipient of asylum seeker applications in Europe with a total of 64500 new asylum claims registered in 2012, representing a 41% increase over 2011’s claims.[11] This higher level is attributable to a larger number of people from the Balkan region requesting international protection in Germany. In particular, the conflict arising in Syria has seen a vast increase in the number of applicants originating from the country. The number of applications in fact from Syria has more than doubled from 2600 in 2011 to 6200 in 2012.

The UNHCR has released an interesting comparison of recipient asylum applicant countries, using national population and GDP as base indicators to compare trends in refugee flows.[12] Firstly, using national population as the base factor, it was found that Malta, on average, received the highest number of asylum seekers compared to its national population at 21.7 applications per 1000 inhabitants. Australia received a relatively low 1.3 applicants per 1000 inhabitants. Secondly, using GDP as an underlying indicator for recipient States, France and the USA were held to have the highest number of asylum applicants at 6.5 and 6.2 applicants per capita respectively.

Australia

The UNHCR’s Report outlines that the number of individuals seeking asylum in Australia has increased by 37% between 2011 and 2012, with a total of 15 800 applications for asylum registered. [13]  This represents a significant increase, which is worrying from the standpoint of the serious risks involved in people smuggling and being on a boat on the high seas. Most of these individuals, one-third in fact, originate from Afghanistan or Sri Lanka.[14]

Nonetheless, in comparison with other refugee-hosting countries, this number is relatively low.[15] Many other industrialised and non-industrialised countries including the United States, Switzerland and Sri Lanka eclipse the number of asylum applications processed in Australia. According to the UNHCR, Australia is currently providing host to only 0.2% of the world’s refugees. At a per capita level, this ranked Australia as 68th in the world.[16] The Australia Parliamentary Library expresses that ‘in the context of our migration program, the number of asylum seekers arriving by boat to Australia is very, very minor. It is less than 1.5% of new migrants.’[17] It is entirely feasible to say that in general, boat arrivals to Australia represent a very small cohort of migrants.

For many people, Australia is not the first place in which they have sought asylum. In the Asia-Pacific region, most countries are not signatories to the United Nations Refugee Convention and lack a sufficient legal and administrative framework for addressing refugee protection issues. This means that asylum seekers in these countries are generally treated in the same way as illegal migrants. They are generally unable to access healthcare and education, rent or purchase property and obtain work through legal channels. Of even great concern is that they may face harassment and abuse and are at risk of being detained and forcibly returned to their country of origin. The lack of effective protection often drives them to seek sanctuary elsewhere (including Australia) in hopes of finding a durable solution.

Developing Countries

There is a large number of the world’s refugees located in developing countries neighbouring their own country of origin. In 2011, developing countries played host to four-fifths of the world’s refugees with 48 of the least developed countries providing asylum to 2.3 million refugees.[18] That is, only 17% of refugees under the UNHCR’s mandate where living outside their region of origin. Examples include the large refugee populations in Pakistan (1.7 million), Iran (886500), Kenya (556500) and Chad (366500).[19] The reason behind these large refugee populations lying so close to the original homeland of many of these refugees is that the quickest and seemingly easiest way to flee from the risk of persecution is to seek refuge across the border. The geography of Africa makes this an option as many countries are landlocked or share a border with at least two neighbouring countries.

Australia plays a significant role in providing protection for people fleeing their country of origin where their safety and the safety of their love ones can no longer be guaranteed. Australia is not alone in opening its borders to those in need. Countries all around the world, including 44 industrialised countries, and even more developing countries, process asylum applications every year. It is our international law obligation to keep our doors open so individuals have a fair opportunity to live free from the fear of persecution.


[1] Ian Lloyd Neubauer, ‘Australia’s Message to Asylum Seeker’s: Go Away’, Time World (online), 23 July 2013 <http://world.time.com/2013/07/23/australias-message-to-asylum-seekers-go-away/#ixzz2dL1X7vwt>.

[2] AFP, ‘Asylum Boat sinks of Australia Amid People-Smuglging Talks’,  Yahoo 7 News (online), 20 August 2013 <http://au.news.yahoocom/latest/a/-/latest/18571660/asylum-boat-sinks-off-australia-amid-people-smuggling-talks/>.

[3]  Gemma Jones, ‘More than 200 on latest asylum seeker boat’, The Telegraph (online), 18 August 2013, <http://www.dailytelegraph.com.au/news/special-features/more-than-200-on-latest-asylum-seeker-boat/story-fnho52jp-1226699490774&gt;.

[4] UHCR, ‘Asylum and Migration: All in the same boat: The challenges of mixed migration’, UNCHR (online) < http://www.unhcr.org/pages/4a1d406060.html&gt;.

[5] UNHCR,  ‘Asylum Trends 2012: Levels and Trends in Industralized Countries’ (Report, UNHCR, 2013) 7.

[6] Ibid, 12.

[7]Ibid, 5.

[8] Ibid,  8.

[9] Data sourced from UNHCR,  ‘Asylum Trends 2012: Levels and Trends in Industralized Countries’ (Report, UNHCR, 2013).

[10] UNHCR,  ‘Asylum Trends 2012: Levels and Trends in Industralized Countries’ (Report, UNHCR, 2013) 9.

[11] Ibid, There were 45700 asylum applications lodged in 2011 according to UNHCR.

[12] Ibid, 13.

[13] Ibid, 3.

[14] Ibid, 8.

[15] SBS, ‘Does Australia take in its ‘fair share’ of refugees?’ SBS (online factsheet) < http://www.sbs.com.au/goback/about/factsheets/8/does-australia-take-in-its-fair-share-of-refugees&gt;.

[16] Ibid.

[17] Janet Phillips, ‘Asylum Seekers and Refugees: What are the Facts?’ (Parliamentary Library, 2013)  15, quoting Julia Gillard in her address to the Lowy Institution (J Gillard (Prime Minister), ‘Moving Australia forward: address to the Lowy Institute’).

[18] SBS, ‘Does Australia take in its ‘fair share’ of refugees?’ SBS (online factsheet) < http://www.sbs.com.au/goback/about/factsheets/8/does-australia-take-in-its-fair-share-of-refugees&gt;.

[19] Ibid.

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What is Mandatory Detention?

Mandatory detention is the practice of compulsorily detaining or imprisoning people seeking political asylum. While Australia is not the only country to detain unauthorised arrivals in certain circumstances, it is the only country where there is mandatory immigration detention for all unlawful non-citizens. Currently, asylum seekers who arrive without authority by boat are detained and usually transferred to Christmas Island while their reasons for being in Australia are identified.[1] Other unlawful non-citizens, such as onshore processed asylum seekers who arrive by plane with appropriate documentation, are generally granted bridging visas and released into the community pending the outcome of their claim. Accordingly, the application of the law is inconsistent and provides a legal basis upon which people arriving by boat are found prima facie ‘unfit’ to live freely amongst those in the community.

History of Mandatory Detention in Australia[2]

Prior to 1992, asylum seekers were held in detention under the Migration Act 1958 (Cth) on a discretionary basis.[3] Mandatory detention was introduced under the Migration Amendment Act 1992 (Cth). The initial purpose of this policy was as a temporary and exceptional measure to deal with a particular class of individuals. That is, Indochinese unauthorised boat arrivals fleeing in the aftermath of the Vietnam War.[4]

Immigration Minister, Gerry Hand, presented the rationale for this rigorous change in migration policy in his second reading speech: 

The amendment provides the incentive for the parties involved in the process not to embark on tactics calculated to delay the final processing of claims. For its part, the Government has no desire to keep these people in custody longer than necessary and would prefer that a proper decision is made as quickly as possible.’[5]

It was proposed that mandatory detention would:

  1. Facilitate the processing of refugee claims;
  2. Prevent unlawful migration; and
  3. Save the cost of re-locating people into the community.

With the enactment of the Migration Reform Act 1992, the class of individuals falling under the application of the mandatory detention provisions has been extended to all ‘unlawful’ non-citizens.[6] The Act distinguished between ‘lawful’ non-citizens and ‘unlawful’ non-citizens. The former are those who could acquire lawful status by the grant of a bridging visia and thereby avoid detention. The latter, ‘unlawful’ non-citizens, including unauthorised boat arrivals had arrived in Australia without authority and therefore, were not afforded the opportunity to apply for a bridging visa. The Migration Reform Act 1992 also removed the temporary, 273-day detention limit that applied under the Migration Amendment Act 1992 allowing for the possibility of indefinite detention for asylum seekers or failed applicants.

Howard Government

The Howard Government was responsible for giving effect to the Pacific Solution; a policy of offshore processing which essentially excised Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands from Australia’s migration zone. This meant that non-citizens arriving unlawfully at one of these territories could not make a valid application for a visa to Australia.[7] Instead, unauthorised arrivals were transferred to offshore processing centers on Nauru and Manus Island (Papua New Guinea) until their asylum claims were processed.

Rudd and Gillard Government

The Rudd Government formally ended the Pacific solution on 8 February 2008. However, in response to increases boat arrivals, the Gillard Government reversed this decision in 2012 and reintroduced the policy of transferring asylum seekers to offshore processing centers in both Nauru and Papua New Guinea.[8]

A new direction for immigration detention policy was announced in 2008 with the aim of allowing the government to maintain a strong stance on border security while, treating people fairly and humanely. Under this new policy, detention was seen as a ‘last resort’ as opposed to standard practice.[9] Despite this, in practice, long-term mandatory detention continues. Poignantly, on 9 April 2010, the Rudd Government announced it would suspend the processing of new asylum claims from Sri Lankan nationals for three months and Afghan nationals for a period of six months due to changed circumstances in Afghanistan and Sri Lanka.  Those affected by the suspension remained indefinitely in immigration detention until the suspension was lifted in July 2010 for Sri Lankans, and September 2010 for Afghans.[10]

Recently, The Gillard Government accepted all the recommendations of the Expert Panel on Asylum Seekers Report released on 13 August 2012. The report put forward ‘an integrated set of proposals’ including the short-term options for legislation that allowed for the establishment of processing centers in Nauru and Papua New Guinea.[11] The Government also introduced a ‘no advantage’ principle meaning that asylum seekers could not be resettled any sooner than they would have been had they not travelled to Australia by boat.[12] Due to the large number of arrivals in 2012, it was announced that people who arrived after 13 August 2012 would not necessarily be transferred offshore but would still have the ‘no advantage’ principle applied to their case onshore and if found to be refugees, may not be issued with permanent protection visas but instead could be issued with bridging visas without work rights.[13]

Statistics and Recent Updates on Immigration Detention

Statistics

The Department of Immigration and Citizenship periodically publishes statistics setting out the number of people in detention. As at 30 April 2013, there were 8797 people in immigration detention in Australia.[14] This figure included 6302 people in immigration detention facilities on the mainland, and a further 2495 in immigration detention on Christmas Island.

The aim of immigration detention centers are to accommodate a range of unlawful non-citizens, mainly people who have over-stayed their visa, people in breach of their visa conditions, or people who were refused entry at Australia’s international airports.[15] Currently, Australia has 10 operational immigration detention facilities.[16]  These detention centers are located at Villawood (Sydney), Maribyrnong (Melbourne), Perth, Christmas Island, Darwin (Northern Territory), Curtin (Western Australia), Scherger (Queensland), Wickham Point (Northern Territory), Pontville (Tasmania), and Yongah Hill (Western Australia).

Conditions in Detention

Immigration detention centers are often located in remote locations such as Weipa, the Northern Territory and Wickham Point. The duration and conditions, including overcrowding and inadequate infrastructure, in these centers has resulted in several hunger strikes, rooftop demonstrations and suicide attempts. On 29 November 2011, the Government released an independent report that reviewed incidents of unrest at the Christmas Island and Villawood detention centers earlier in 2011. The report found that the immigration detention infrastructure on Christmas Island was not able to cope with either the number or varying risk profiles of detainees.[17] A further report by the Australian National Audit Office (ANAO) in February 2013 found that there is ‘considerable variability’ in the standard of services delivered across the detention network and that ‘inconsistency in service provision can lead to tensions within the detainee population’, which in turn may contribute to unrest.[18]  In summary, detention can be harmful to individuals health and wellbeing, and of more concern, it is not consistent with individual’s fundamental right to liberty.[19]

Sarah Brown


[1] Australian Government Department of Immigration & Citizenship, Irregular Maritime Arrivals: You arrived in Australia from 13 August 2012 < http://www.immi.gov.au/ima/en/after/&gt;.

[2] For more information on the history of mandatory detention see, Janet Phillips and Harriet Spinks, ‘Boat arrivals in Australia since 1976’ (Background Note, Parliamentary Library, 15 July 2011) <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/Detention&gt;.

[3] The Migration Legislation Amendment Act 1989 allowed officers to arrest and detain anyone suspected of being an ‘illegal entrant’.

[4] Joint Standing Committee on Migration, Immigration detention in Australia: a new beginning: criteria for release from detention, The Parliament of the Commonwealth of Australia, Canberra, September 1990, 3.

[5] Commonwealth, Parliamentary Debates, House of Representatives, 5 May 1992, 2370 (Gerry Hand).

[6]  The Migration Reform Act 1992 came into effect 1 September 1994.

[7] Under the Migration Amendment (Excision from Migration Zone) Bill 2001 and Migration Amendment (Excision from Migration Zone) Bills 2001.

[8] Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; Janet Phillips,  ‘The ‘Pacific Solution’ revisited: a statistical guide to the asylum seeker caseloads on Nauru and Manus Island’ (Background Note, Parliamentary Library, Parliament of Australia, 4 September 2012) 2.

[9] Minister for Immigration and Citizenship Chris Evans, ‘New Directions in Detention – Restoring Integrity to Australia’s Immigration System’ (Speech delivered at Australian National University, Canberra, 29 July 2008) <http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm&gt;.

[10] Minister for Immigration and Citizenship Chris Bowen, ‘Suspension of processing of Afghan asylum seeker claims to be lifted’ (Media Release, 30 September 2010) <http://www.minister.immi.gov.au/media/cb/2010/cb155332.htm>; Paul Maley and Lanai Vasek, ‘Processing ban on Afghan asylum-seekers lifted’, The Australian  (online), 1 October 2010, < http://www.theaustralian.com.au/national-affairs/processing-ban-on-asylum-lifted/story-fn59niix-1225932583358&gt;.

[11] Expert Panel on Asylum Seeekers, Report of the Expert Panel on Asylum Seekers, Department of the Prime Minister and Cabinet, Canberra, August 2012, 7-8 <http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/report/expert_panel_on_seekers_full_report>.

[13] Minister for Immigration and Citizenship Chris Bowen, ‘No advantage onshore for boat arrivals’ (Media Release, 30 September 2010) <http://www.minister.immi.gov.au/media/cb/2012/cb191883.htm&gt;.

[14] DIAC, Immigration Detention Statistics Summary (30 April 2013) Australian Government Department of Immigration and Citizenship < http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-apr2013.pdf&gt;.

[15] Australian Government Department of Immigration and Citizenship, About Immigration Detention Facilities (2013) < http://www.immi.gov.au/managing-australias-borders/detention/facilities/about/immigration-detention-facilities.htm&gt;.

[16] DIAC, ‘Location of Operational Facilities’ (2012) <http://www.immi.gov.au/managing-australias-borders/detention/facilities/locations/>.

[17] A Hawke and H Williams, Independent Review of the Incidents at the Christmas Island Immigration Detention Center and Villawood Immigration Detention Centre (31 August 2011) Australian Government Department of Immigration and Citizenship <http://www.immi.gov.au/media/publications/pdf/2011/independent-review-incidents-christmas-island-villawood-full.pdf>.

[18] The Auditor- General, Individual Management Services Provided to People in Immigration Detention Canberra (11 February 2013) Australian National Audit Office < http://www.anao.gov.au/~/media/Files/Audit%20Reports/2012%202013/Audit%20Report%2021/201213%20Audit%20Report%20No%2021.pdf&gt;.

[19] Janet Phillips and Harriet Spinks, ‘Boat arrivals in Australia since 1976’ (Background Note, Parliamentary Library, 15 July 2011) 171 <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/Detention&gt;.

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Update: Plaintiff S138/2012 v Director General of Security & Ors

Since our last post concerning the case of Plaintiff S138, the plaintiff has been released from detention on the recommendation of Justice Stone and therefore, the hearing has been vacated and the matter concluded. However, the legal questions including statutory construction and the constitutional validity of detention raised within the post remain undecided.

 

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Plaintiff S138/2012 v Director General of Security & Ors

I           Plaintiff S138/2012

The case of Plaintiff S138/2012[1] is expected to be heard by the High Court of Australia in June 2013. At the time that proceedings were commenced, in May 2012, the plaintiff had been detained in administrative immigration detention for over three years despite having been recognised to be a legitimate refugee.[2] This is because the Australian Security and Intelligence Organisation (‘ASIO’) has determined that the plaintiff poses a threat to Australia’s national security, and has accordingly issued an adverse security assessment against him.

In the directions hearing of 30 May 2012, Senior Counsel for the plaintiff indicated that the plaintiff would seek to ‘put in issue the constitutional validity of section 189, and perhaps also section 196, of the Migration Act’ (‘the Act’).[3] Subsequently, in the directions hearing of 19 February 2013, Senior Counsel submitted that, essentially, there were four substantive issues: [4]

a)     a procedural fairness question;

b)    a question about the significance of reliance on public interest criterion 4002 (‘PIC 4002’);

c)     a question of statutory construction; and

d)    a question about the constitutional validity of the plaintiff’s detention.

The later directions hearing also flagged the pending independent review of the plaintiff’s adverse security assessment by Dr Margaret Stone – a retired federal court judge. While it has been ordered that the special case proceed to trial before the High Court of Australia, there remains the dormant possibility than the results of this review, once provided to ASIO, may result in a decision to revisit or reissue its assessment. It was submitted at the directions hearing that the outcome of this independent review may in fact result in the plaintiff’s case being in part or even wholly resolved. While the issuing of a favourable security assessment by ASIO is highly uncertain,[5] the outcome of this independent review will be dealt with in submissions by the parties in the upcoming proceedings.

The four substantive issues raised in the directions hearing of 19 February 2013 suggest:

  • Firstly, that an argument will be brought regarding the constitutionality of denying procedural fairness in cases which could result in the indefinite detention of a person;
  • Secondly, the validity of the Minister’s reliance on PIC 4002 will be challenged;
  • Thirdly, whether the combined regime of sections 189, 196 and 198 of the Migration Act 1958 (Cth) can be said to authorise the detention of the plaintiff; and
  • Fourthly, an argument will be brought regarding the constitutional validity of the regime, thereby inviting reconsideration of the decision in Al-Kateb v Godwin.[6]

Ahead of the High Court’s decision in Plaintiff S138/2012, these issues and their current status in Australian law will be explored in this analysis.

II         The Constitutional Validity of Denying Procedural Fairness

It is well-established in Australian law that the involuntary detention of a person by the state is only permissible following the adjudication by a court of the person’s criminal guilt according to a particular process of law.[7] That is, there is a constitutional immunity from Parliamentary or Executive usurpation of the judicial function; only the judicial arm of government has the power to detain.[8] However, an exception to this principle is manifest in cases of administrative detention for immigration purposes, and non-citizens may be subjected to non-punitive detention for the purposes of receiving, investigating and determining an application for entry into the Australian community, and for the purposes of expulsion or deportation.[9] The question to be posed in the High Court by Plaintiff S138 concerns the legal parameters of the operation of that exception. The plaintiff sought leave to intervene in the 2012 case of Plaintiff M47-2012 v Director General of Security (‘M47’)[10] and there submitted that the Commonwealth’s legislative power to authorise detention pursuant to an executive decision “does not extend to [permit] indefinite detention where a condition precedent to detention is, in substance, unreviewable, including where the person has not been provided a substantial and meaningful opportunity to be heard.”[11]

The plaintiff argues that the Director-General of Security failed to comply with the requirements of procedural fairness in respect of the adverse security assessment. However, it is anticipated that the Commonwealth will argue that the content of the duty to accord the plaintiff procedural fairness is greatly reduced by reasons of the public interest in national security.[12] Recognising the force of those submissions, Counsel for the plaintiff have asserted that this will feed in as an element of the constitutional argument. They have argued that, where liberty is at stake, the requirements of the Constitution must then be considered.[13] They submit that the only impediment to the plaintiff´s release is the adverse security assessment,[14] and yet it is essentially unreviewable, both on the merits and judicially. There is no real prospect of removing the plaintiff to a third country, and he cannot be returned to Sri Lanka as this would violate the prohibition on refoulement contained in, inter alia, Article 33 of the Convention relating to the Status of Refugees (‘Refugee Convention’).[15] The result is that, through an executive assessment, a man has been subject to prolonged, and potentially indefinite, detention. Senior Counsel for the plaintiff suggest that this is not permitted by the exception to constitutional immunity from administrative detention, and that the requirements of procedural fairness in these circumstances require that the plaintiff have the opportunity to hear the case against him.

A challenge to the procedural fairness of the issue of an adverse security assessment was mounted in the High Court case of M47.[16] However, the Court found that, on the particular facts of that case, the plaintiff had been accorded natural justice.[17] No constitutional issue was, therefore, found to arise. Noting that Plaintiff S138’s case will proceed on the footing that the plaintiff has been denied procedural fairness, Justice Heydon has already indicated that such an assumption is problematic given the finding in M47.[18] His Honour expressed concern that it would be “undesirable to debate constitutional difficulties said to arise if procedural fairness is not given in a case in which procedural fairness was given.”[19] However, it remains a question of fact whether Plaintiff S138 was accorded natural justice, and the extent of the duty will need to be assessed by reference to the particular circumstances of the case. If the plaintiff has not been accorded natural justice, the case may serve as a vehicle for assessing the constitutionality of denying procedural fairness where detention is prolonged and potentially indefinite.

III        Validity of the Department’s Reliance on PIC 4002

The decision in M47[20] turned on the invalidity of PIC 4002 rather than on any constitutional issue. Section 31(3) of the Act stipulates that the Migration Regulations 1994 may prescribe criteria for a protection visa, and PIC 4002 is one such criterion. It requires that the applicant must not be assessed by ASIO to be a risk to security. Pursuant to section 65(1)(b), the Minister is to refuse to grant a visa where, inter alia, PIC 4002 has not been satisfied. The net effect of such provisions has been that, where the Minister is not satisfied that the applicant has been cleared by ASIO, no visa will be granted.[21] However, in M47,[22] a 4:3 majority of the Court held that PIC 4002 was inconsistent with the scheme of the Act as it “impermissibly subsumed the Minister’s own statutory powers to exclude refugees for security reasons”, [23] which are distilled from Articles 32 and 33 of the Refugee Convention.[24] As was articulated by Chief Justice French, by effectively vesting in ASIO the power to refuse a visa on security grounds, PIC 4002 goes beyond the power conferred by section 31(3) of the Act. [25] Furthermore, while the Act imposes on the Minister personal responsibility and accountability and subjects the Minister’s powers to merits review, ASIO assessments are, in practice, insulated from meaningful judicial review.

As the subject of an adverse security assessment, Plaintiff S138 fell directly within the ambit of the operation of PIC 4002 and was, therefore, refused a visa. Without a valid visa, he is considered to be an unlawful non-citizen,[26] rendering him subject to the mandatory detention scheme. In the wake of M47[27] however, it is questionable whether the invalidity of the prescription of PIC 4002 as a criterion for granting protection visas holds any significance for his case. Although the High Court in M47[28] did not address whether ASIO assessments of offshore entry persons are invalid, the government is reportedly favouring a narrow interpretation of the majority’s findings, arguing that it has no application to offshore arrivals.[29] Such an argument turns on a distinction under the Act between lawful non-citizens and unlawful non-citizens who arrive in Australia. Plaintiff M47 was rescued from the Oceanic Viking and flown to Australia on a visa that lasted less than an hour. Thus, he arrived in Australia as a lawful non-citizen[30] and was entitled to apply (and did so) for a protection visa under section 36. Conversely, Plaintiff S138 arrived at Christmas Island as an “offshore entry person” without a visa. He was not entitled to make an application for a protection visa, as offshore entry persons are barred under section 46A(1) of the Act from making a valid visa application. Although the Minister has the power to ‘lift the bar’ and allow a valid application to be made, this power is non-compellable, and it is the public interest which will inform whether or not the power is to be exercised. [31] Although the practical operation of the ‘public interest’ test in this context has been determined by reference to Australia’s international law obligations, and visas are usually granted where the Minister is satisfied that the person meets the definition of a refugee,[32] the offshore protection regime remains largely discretionary.[33] A strict approach to the issue would, therefore, suggest that the Minister’s reliance on PIC 4002 does not alter the basic position of an offshore entry person, because such persons are not entitled, under the Act, to make a valid visa application in the first place. The fact that the Independent Reviewer has commenced reviews may provide further indication of the Government’s view that the decision in M47[34] does not apply to all of the refugees, since there would be no need to review assessments which have already been deemed invalid as a result of M47.[35]

Moreover, it has been noted that, irrespective of the invalidity of PIC 4002, detention is still authorised under the Act pending the grant of a visa or the person’s removal from Australia.[36] Even after the adjudication of his case, Plaintiff M47 has remained in detention pending final determination of his visa application. Without a valid visa, his status as an unlawful non-citizen is unchanged, and his continued detention for the purpose of assessing his application is lawful pursuant to section 96 of the Act.[37] Thus, even if the Court finds that there has been an error of law through the Minister’s reliance on PIC 4002, this will not in itself bring the plaintiff’s detention to an end. It is for this reason that Senior Counsel are also seeking to agitate constitutional questions vis-à-vis procedural fairness, indefinite detention and the correctness of the High Court’s decision in Al-Kateb v Godwin.[38]

IV        The Detention Regime under sections 189, 196 and 198

The combined effect of sections 189, 196 and 198 of the Migration Act 1958 (Cth) establish the mandatory immigration detention regime in Australia. Section 189 provides that once an officer[39] ‘knows or reasonably suspects’ that a person in the migration zone is an unlawful non-citizen, or would be an unlawful non-citizen if they came into the migration zone, they are required to detain that person. In regards to an unlawful non-citizen in an excised offshore place this power to detain appears to be discretionary.[40] Section 196 then provides that an unlawful non-citizen must be kept in immigration detention until they are removed, deported or granted a visa. Where an application for a visa has been made by the non-citizen, release cannot be effected unless and until the visa has been granted and they become a lawful non-citizen.[41] Under section 198, an unlawful non-citizen in immigration clearance must be removed from Australia as soon as reasonably practicable if:

  • they have made a written request to be removed; or
  • they have been refused immigration clearance and have not made a valid visa application; or
  • they have made a visa application that has been finally determined and the visa has not been granted.

A majority of the High Court in Al-Kateb v Godwin[42] (‘Al-Kateb’) held that sections 189, 196 and 198 of the Act authorised indefinite detention where there is no real prospect of removing an unlawful non-citizen. In this case the plaintiff had been mandatorily detained under section 189 as an unlawful non-citizen and refused a protection visa. The plaintiff then requested removal under section 198(1) which obliged removal ‘as soon as reasonably practicable’ however, attempts to remove the plaintiff were unsuccessful due to a failure to secure the agreement of a third country willing to receive him. The requirement in section 196 that detention continue ‘until’ the unlawful non-citizen is removed resulted in the plaintiff being indefinitely detained until such removal could be effected. The High Court further held that the words of sections 189, 196 and 198 were unambiguous and as such it was not possible, through a process of construction, to subject the sections to some narrower limitation such as removal within a reasonable time.[43] Conversely, Justice Gummow, in dissent, stated in M47[44] that the construction of sections 189, 196 and 198 adopted by the majority in Al-Kateb[45] should not be regarded as precedent.[46] His Honour held that:

if removal ceases to be a practical possibility, the detention must cease, at least for as long as that situation continues. That is to say, the duty of removal imposed upon an officer by s 198 may continue to subsist, although it is not at present practically available, without the continuing necessity of detention of the unlawful non-citizen.[47]

Justice Bell agreed that “a conclusion that the scheme abrogates fundamental rights in this degree” was weakened by the failure of two members of the majority in Al-Kateb[48] to pay sufficient heed to the principle of legality.[49] However, the majority in M47[50] affirmed the position advanced in Al-Kateb[51], holding that sections 189, 196, 198 authorise the detention of an unlawful non-citizen until his or her removal to another country becomes reasonably practicable, even if there is no reasonable likelihood or prospect of effecting removal in the foreseeable future.

In Plaintiff S138/ 2012[52] an adverse security assessment of the plaintiff by ASIO has, at present, precluded the granting of a protection visa. This refusal to grant a visa thus triggers the requirement under section 198 requiring removal as soon as reasonably practicable. Following the reasoning of the majority in Al-Kateb[53] and M47,[54] the plaintiff’s indefinite detention would appear to be justified up until the point at which removal can be effected. However, as indicted by the submissions of Senior Counsel for the plaintiff, this construction of sections 189, 196 and 198 will be once again be considered in Plaintiff S138/ 2012,[55]

V         Constitutional Validity of Indefinite Detention

The constitutional validity of the combined operation of sections 189, 196 and 198 was upheld in Al-Kateb.[56] The Court held that a law authorising detention of an alien is a law with respect to the aliens head of power under section 51(xix) of the Constitution[57] and the immigration and emigration head of power under section 51(xxvii).[58] Additionally, the High Court held that the detention regime created under sections 189, 196 and 198. including the potential for indefinite detention pending removal, did not infringe Chapter III of the Constitution. The Court argued that detention under the Act is non-punitive and does not constitute an exercise of judicial power by the parliament so long as the purpose of the detention is to ensure availability for deportation.[59] The unlikelihood of deportation becoming reasonably practicable in the foreseeable future did not mean that this purpose of detention was, necessarily, abandoned.[60] Importantly there were some doubts as to the compatibility of indefinite detention at the will of the executive in the context of Australia’s constitutional arrangements as raised in the dissent of Kirby and Gummow JJ. Such arguments may be revisited in the current case of Plaintiff S138/ 2012.[61]

It has been argued that Australia’s treatment of refugees gives rise to a number of inconsistencies with international human rights law obligations; in particular Article 9 of the International Covenant on Civil and Political Rights prohibiting arbitrary or unlawful detention and requiring periodic judicial review and supervision of detention.[62] Similarly the regime may also be said to violate Article 31(1) of the Refugee Convention[63]which prohibits the imposition of penalties on refugees by reason of their unlawful mode of entry into a state, subject to the qualification that they present themselves to authorities promptly and show good cause for their illegal presence. Arguably, administrative detention can amount to a ‘penalty’ in this regard where it is ‘unnecessary, unreasonable, arbitrary or discriminatory, lacking in basic safeguards… or otherwise in breach of human rights law.’[64]

However in Re Woolley; Ex Parte Applicants M27/ 2003[65] it was held that the constitutional validity of the Australian mandatory detention regime under sections 196 and 198 of the Act is not affected by its incompatibility under the International Covenant on Civil and Political Rights,[66] the Convention on the Rights of the Child[67] and the Refugee Convention.[68]

VI        Potential impact of Plaintiff S138/2012

The High Court’s decision in Plaintiff S138/2012 could herald significant implications for the current ASIO assessment regime and the question of whether indefinite detention per se is authorised under the Migration Act 1958 (Cth) and constitutionally valid. On the issue of procedural fairness, notwithstanding the recent appointment of an Independent Reviewer, the Government has so far refrained from introducing binding merits review over ASIO assessments of refugees. Although the Australian Greens proposed extensive reforms to that effect in the hope of “introducing fairness into Australian law” for refugees who are the subjects of adverse security assessments,[69] the Senate Legal and Constitutional Affairs Committee recommended in its recent report that the bill not be passed.[70] It appears unlikely that the Government will be changing its stance on indefinite detention.

The issues canvassed above will be discussed again once the High Court has released its judgment.

Steph Hayes and Paris Astill-Torchia

GLOSSARY OF TERMS

Procedural Fairness (Natural Justice)

Common law principles implied in relation to statutory and prerogative powers to ensure the probity of the decision-making procedure of the courts and administrators. Denial of procedural fairness in the making of a decision is a ground for judicial review of the decision.

Constitutional Validity

Consistent with the laws regulating government as created under the Australian Constitution.

Prohibition on Refoulement

International law imposes on states an obligation not to expel or return ( ‘refouler’ ) a refugee, either directly or indirectly, to the frontier of a territory where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

Judicial Review

The determination by courts of the legality of exercises of power by administrative decision-makers under the Administrative Decisions (Judicial Review) Act 1977.

Merits Review

Review of the fact finding and policy choices involved in the decision under review (separate from the lawfulness of the decision). Jurisdiction to review administrative decisions on migration issues conferred on the Migration Review Tribunal or the Refugee Review Tribunal.

Excised offshore place

A place which was formerly a part of the Australian migration zone, but which has been excluded from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications under the Migration Act 1958.


[1] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[2] ‘Refugee’ is defined in Article 1A of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[3] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[4] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[5] To date, ASIO has overturned only two of its own adverse security assessments. The first occurred in 2007 when Mohammad Faisal, an Iraqi refugee who was detained on Nauru between 2001 and 2006 under the Australian Government´s “Pacific Solution”, was eventually evacuated to Brisbane following deterioration in his mental health. A second security assessment found that he was not a security threat and he successfully applied for a protection visa. The second occurred in May this year, and ASIO has confirmed that Manokala Jenaddarsan and her six-year-old son Ragavan, who have been in Villawood Detention Centre since 2011 due to Ms. Jenaddarsan’s adverse assessment, will soon be released into the community.

[6] Al-Kateb v Godwin (2004) 219 CLR 562.

[7] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [13], citing Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [80] per Gummow J; Thomas v Mowbray (2007) 233 CLR 307 at [114]-[115] per Gummow and Crennan JJ; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ, also at 10 per Mason CJ and at 71 per McHugh J.

[8] See Chapter III of the Commonwealth of Australia Constitution Act.

[9] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [14], citing with approval Chu Kheng Lim v Minister for Immigration (1992) 176 CLR I at 29-32.

[10] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[11] Ibid at [10] (sub-paragraph (c)).

[12] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[13] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [12].

[14] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[15] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[16] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[17] Ibid at [144] per Gummow J; [253] per Heydon J; [380] per Crennan J; [415] per Kiefel J; and [505] per Bell J.

[18] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[19] Ibid at [359] per Heydon J.

[20] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[21] Migration Regulations 1994 (Cth).

[22] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[23] Ben Saul, ‘Dark Justice: Australia’s Indefinite Detention of Refugees on Security Grounds Under International Human Rights Law’ (2012) 13 Melbourne Journal of International Law 2, 14.

[24] Ibid.

[25] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [3].

[26] An unlawful non-citizen is defined in section 14(1) of the Migration Act 1958 (Cth).

[27] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[28] Ibid.

[29] Harriet Alexander, ‘Refugee Lawyers Challenge Indefinite Detention Rule’, Sydney Morning Herald (online), 12 December 2012 <http://www.smh.com.au/opinion/political-news/refugee-lawyers-challenge-indefinite-detention-rule-20121211-2b7lr.html&gt;.

[30] A ‘lawful non-citizen’ is defined in section 13(1) of the Migration Act 1958 (Cth).

[31] Section 46A(2) of the Migration Act 1958 (Cth).

[32] See Wood and McAdam, ‘Australian asylum policy all at sea: an analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia-Malaysia arrangement’ (2012) 61(1) International & Comparative Law Quarterly 274, 281.

[33] It should be noted that procedural safeguards, although limited, remain in place within the offshore processing regime, including the requirement that common law rules of natural justice continue to apply: see Plaintiff M61/2010E and Plaintiff M69/2010 v Commonwealth of Australia (2010) 272 ALR 14.

[34] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[35] Ben Saul, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012, 4 December 2012, 4.

[36] See, e.g., the discussion in Saul, supra n 23 at 14.

[37] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [28], [72] per French CJ; [225] per Hayne J; [404] per Crennan J; and [460] per Kiefel J.

[38] Al-Kateb v Godwin (2004) 219 CLR 562.

[39] ‘Officer’ is defined in section 5 of the Migration Act 1958 (Cth).

[40] Migration Act 1958 (Cth) s 189(3).

[41] ‘Lawful non-citizen’ is defined in section 13 of the Migration Act 1958 (Cth): “A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.”

[42] Al-Kateb v Goodwin (2004) 219 CLR 562.

[43] Ibid per McHugh, Hayne, Callinan and Heydon JJ. Glesson CJ, Gummow and Kirby JJ were in dissent on this point.

[44] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243.

[45] Al-Kateb v Goodwin (2004) 219 CLR 562.

[46] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [120]. Bell J agreed with this construction at [530]- [535].

[47] Ibid at [117]. This was the construction contained in the dissenting judgement of Gleeson J in Al-Kateb v Goodwin (2004) 219 CLR 562.

[48] Al-Kateb v Goodwin (2004) 219 CLR 562.

[49] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [532].

[50] Ibid per French CJ, Hayne, Crennan, Kiefel and Heydon JJ.

[51] Al-Kateb v Goodwin (2004) 219 CLR 562.

[52] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[53] Al-Kateb v Goodwin (2004) 219 CLR 562.

[54] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 per French CJ, Hayne, Crennan, Kiefel and Heydon JJ.

[55] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[56] Al-Kateb v Goodwin (2004) 219 CLR 562.

[57] Ibid per McHugh J and Gleeson CJ.

[58] Ibid per Hayne J, Heydon J agreeing.

[59]Ibid per McHugh, Hayne, Callinan JJ, Heydon J agreeing and Gleeson CJ.

[60] Ibid per Hayne, Callinan JJ, Heydon J agreeing.

[61] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[62] For a comprehensive overview of such inconsistencies see Saul, supra n 23.

[63] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[64] Guy Goodwin-Gill and Jane McAdam , The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 266.

[65] Re Woolley; Ex Parte Applicants M276/ 2003 (2004) 225 CLR 1, 46-47.

[66] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[67] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[68] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[69] Migration and Security Legislation Amendment (Review of Security Assessments) Bill.

[70] Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Report on the Migration and Security Legislation Amendment (Review of Security Assessments) Bill (April 30 2013).

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Sri Lanka

The numbers of Sri Lankan asylum seekers coming to Australia seeking refugee status is rising. With 2,345 protection visa applications lodged by Sri Lankans in 2012,[1] over one third of all asylum-seekers in Australia originate from either Afghanistan or Sri Lanka.[2] Despite political rhetoric,[3] the vast majority of Sri Lankan asylum seekers arriving by boat are found to be genuine refugees. Over 81% of rejected DIAC applications from irregular maritime arrivals are overturned upon Independent Merits Review/Independent Protection Assessment [4]

While most refugee flows stem from wartime conditions or dictatorships, the situation in Sri Lanka poses an interesting exception. With the 26-year-long conflict between the government forces and the Liberation Tigers of Tamil Eelam (LTTE) ending in 2009, ‘improvement and stabilisation in conditions’ was widely regarded as inevitable.[5] This has led to the Australian government holding a somewhat skewed perception of the situation in Sri Lanka.

In April 2010, the Australian government suspended the processing of asylum claims from Sri Lanka on the basis that the Tamil minority could now live ‘reasonably safely’.[6] This view was reinforced by acts of apparent advancement by Sri Lankan President Rajapaksa, including the appointment of a Lessons Learnt Reconciliation Commission (LLRC) to investigate human rights abuses and the implementation of a National Human Rights Action Plan (NHRAP) in 2011.[7] However, despite the Sri Lankan High Commissioner, Admiral Thisara Samarasinghe, recently stating that Sri Lankans no longer need to seek asylum,[8] reports indicate that the Sri Lankan government has continued its assault on democracy and failed to take any significant steps toward providing accountability for war crimes committed during the conflict.[9]

Thus, what was once a country marred by internal violence, the situation in Sri Lanka has become one of a deteriorating governance crisis. The growing ethnic tension and denial of minority rights has been exemplified by the dismantling of the judiciary and other democratic checks on the executive and military. This situation is worsened by the Rajapaksa government’s refusal to comply with the UN Human Rights Council’s (UNHRC) March 2012 and March 2013 resolutions on reconciliation and accountability.[10] Further, while the government claims to have implemented many of the LLRC recommendations, the most critical issues have, thus far, been ignored.[11]

Lack of Accountability 

Sri Lanka has made no progress toward ensuring justice for the victims of human rights violations committed during the conflict between the government and the LTTE.[12] These abuses were perpetrated by both sides in the conflict and include the indiscriminate shelling of civilians and their use as ‘human shields’. [13] With Sri Lankan officials, including the country’s President and senior diplomats, facing murder indictments in Swiss, German,US and Australian courts,[14] a lack of internal accountability remains a key issue in Sri Lanka.

In March 2012 and 2013, the UNHRC adopted resolutions finding that the LLRC failed to adequately address allegations of violations of international law. It requested that the government expeditiously present a comprehensive plan detailing the steps it had taken to implement the LLRC’s recommendations and to address accountability. The Sri Lankan government’s response was to publicly threaten human rights defenders who had advocated for the resolution.[15] While the government has since announced the adoption of an action plan, the scheme is criticised for its vague requirements for ‘looking into’ civilian deaths, and overall the lack of transparency and independence.[16]

‘Authoritarian Turn’

Government attacks on the judiciary and political dissent highlight an authoritarian turn that threatens stability and peace in Sri Lanka.[17] President Rajapaksa and his brothers continue to accumulate power at the expense of democratic institutions.[18] The impeachment of the Chief Justice in January this year highlights the weakness of political opposition.[19]

On 15 November 2012, the UN Special Rapporteur on Independence of Judges and Lawyers released a statement criticising the impeachment, stating that “the misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”[20] Similar calls to restore the independence of the marginalised National Human Rights Commission (NHRC) have been ignored. [21]

Violence, Arbitrary Detention and Enforced Disappearances

Gangs linked to government-allied political parties, including the Eelam People’s Democratic Party, Tamil People’s Liberation Tigers and the Sri Lanka Freedom Party, have been blamed for robberies, abductions, rapes, assaults and murders throughout Sri Lanka.[22] There are frequent reports of people being taken into white vans and later dumped, or never seen again.[23] Political activists, returning displaced persons, and former LTTE members are targets.[24]

In April 2012, nearly 220 Tamils in the Trincomalee area were arrested and held for several days without charge in military detention camps.[25] Further, Tamils who returned to Sri Lanka, including deported asylum seekers, reported being detained and accused of having LTTE links or association with anti-government activities whilst overseas.[26]

Although formal emergency regulations were lifted in 2011, the Sri Lankan police and security forces continue to enjoy broad detention powers.[27] With the  Prevention of Terrorism Act (PTA) 1979 permitting detention without charge for up to 18 months, an abusive detention regime persists in Sri Lanka.

Attacks on Civil Society and Clampdowns on Free Speech

Suppression of expression and peaceful dissent is common in Sri Lanka.[28] Reports indicate that both human rights defenders and individuals expressing anti-government sentiment are portrayed as ‘traitors’ and subjected to anonymous threats and smear campaigns.[29] The government has taken no action against cabinet minister, Mervyn de Silva, who threatened activists.[30]

Increased surveillance and clampdowns on free speech have been reported by Amnesty International.[31] Throughout 2012, the government shut down at least five news websites critical of the government.[32]  Sunday leader reporter, Faraz Shauketaly, was gunned down by unidentified assailants in February this year.[33] This follows the 2009 shooting of Lasantha Wickrematunge, the Sunday leader’s previous editor. No investigations have been conducted into these deaths.[34]

Internally Displaced Persons (IDPs) and Militarisation

Despite the government’s claims of decreased military presence in the north and east, reports indicate that military personnel still frequently intervene in civilian life.[35] Fishermen and farmers report that armed forces continuing to encroach into their coastal areas and onto their land, impacting their livelihoods.[36]

More than 93,000 conflict-displaced people remain living in camps, with host communities or in transit situations.[37] Sri Lanka has no legislation governing the protection of internally displaced persons (‘IDPs’). A bill drafted by the NHRC in 2008 has not been taken forward.[38]

It is integral to critically engage with independent evidence when determining the safety and stability in Sri Lanka for refugee claims. A focus on mainstream media and statements by Sri Lankan officials has the capacity to distort the true situation and could lead to devastating consequences when those truly fearing persecution are denied refugee protection.

Jess Thrower


[1] UN High Commissioner for Refugees, UNHCR Asylum Trends 2012: Levels and Trends in Industrialized Countries (21 March 2013) <http://www.refworld.org/docid/514ad4e02.html&gt;, 27.

[2] Ibid, 8.

[3] SBS, Sri Lanka ‘welcomes’ boat arrivals (11 April 2013) <http://www.sbs.com.au/news/article/1755142/Sri-Lanka-welcomes-asylum-boat-returns&gt;.

[4] Department of Immigration and Citizenship (2012) Asylum Trends – Australia: 2011-12 Annual Publication, Program Evidence and Knowledge Section, 30.

[5] The Hon Stephen Smith MP, Australian Minister for Foreign Affairs and Trade, Changes to Australia’s immigration processing system (9 April 2010) <http://www.foreignminister.gov.au/releases/2010/fa-s100409.html&gt;.

[6] Larry Marshall, ‘Introduction: Sri Lanka after the war’ (2010) 22(3) Global Change, Peace & Security 327.

[7] Department of Foreign Affairs and Trade, Sri Lanka country brief (August 2012) <http://www.dfat.gov.au/geo/sri_lanka/sri_lanka_country_brief.html&gt;.

[8] Lateline, High Commissioner says Sri Lankans don’t need to seek asylum (10 April 2013) <http://www.abc.net.au/lateline/content/2013/s3734398.htm&gt;.

[9] Human Rights Watch (HRW), World Report 2013: Sri Lanka (22 April 2013) <http://www.hrw.org/world-report/2013/country-chapters/sri-lanka>.

[10] BBC, UN passes resolution against Sri Lanka rights record (21 March 2013) <http://www.bbc.co.uk/news/world-asia-21873551&gt;.

[11] International Crisis Group (ICG), Sri Lanka’s Authoritarian Turn: The Need for International Action (20 February 2013) Asia Report N°243 <http://www.refworld.org/docid/5124deb32.html&gt;.

[12] HRW, above n 9, 2.

[13] Ibid.

[14] Amnesty International, Amnesty International Annual Report 2012 – Sri Lanka (24 May 2012) <http://www.refworld.org/docid/4fbe390d46.html&gt;; The Conversation, Experts respond: indicting the Sri Lankan president for war crimes (25 October 2011) <http://theconversation.com/experts-respond-indicting-the-sri-lankan-president-for-war-crimes-3990&gt;.

[15] HRW, above n 9, 3.

[16] Ibid.

[17] ICG, above n 11, 3.

[18] HRW, above n 9, 3.

[19] ICG, above n 11, 3.

[20] United Kingdom: Foreign and Commonwealth Office, Human Rights and Democracy: The 2012 Foreign & Commonwealth Office Report – Sri Lanka (15 April 2013) <http://www.refworld.org/docid/516fb7bf16.html&gt;.

[21] HRW, above n 9, 2.

[22] Amnesty International, There are no human rights in Sri Lanka (1 May 2013) <http://www.refworld.org/docid/5183b25b4.html&gt;; Human Rights Watch (HRW), We Will Teach You a Lesson” – Sexual Violence against Tamils by Sri Lankan Security Forces (26 February 2013) <http://www.refworld.org/docid/5130850f2.html&gt;.

[23] Amnesty International, above n 22.

[24] Amnesty International, above n 14.

[25] HRW, above n 9.

[26] Ibid.

[27] Ibid.

[28] Amnesty International, Sri Lanka’s assault on dissent (30 April 2013) ASA 37/003/2013 <http://www.refworld.org/docid/51875d824.html&gt;.

[29] Amnesty International, above n 14, 3.

[30] BBC Colombo, Sri Lanka minister Mervyn Silva threatens journalists (23 March 2012) <http://www.bbc.co.uk/news/world-asia-17491832&gt;.

[31] Amnesty International, above n 14; Committee to Protect Journalists, Sri Lankan daily attacked again, twice in two weeks (15 April 2013) <http://www.refworld.org/docid/518cafc718.html&gt;.

[32] HRW, above n 9.

[33] BBC, Sri Lanka Sunday Leader reporter Faraz Shauketaly shot (16 February 2013) <http://www.bbc.co.uk/news/world-asia-21482317&gt;.

[34] HRW, above n 9.

[35] Sri Lanka Guardian, Militarisation, Lanka Style (10 February 2013) <http://www.srilankaguardian.org/2013/02/militarisation-lankan-style.html&gt;.

[36] UN High Commissioner for Refugees, Sri Lanka’s displacement chapter nears end with closure of Menik Farm (27 September 2012) <http://www.refworld.org/docid/50654eca2.html&gt;.

[37] Internal Displacement Monitoring Centre (IDMC), Global Overview 2012: People internally displaced by conflict and violence – Sri Lanka (29 April 2013) <http://www.refworld.org/docid/517fb0516.html&gt;.

[38] Ibid.

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March/April 2012: Shahi Case-note and Boats, Camps and Barbed Wire Fences (ABC Radio National forum)

Kiri Flutter has written a Case Note – Shahi v Minister for Immigration and Citizenship – a High Court of Australia decision concerning the rights of unaccompanied minors to sponsor immediate family members to join them in Australia.

Boats, Camps and Barbed Wire Fences – Forced Migration and the Law

On April 13, 2012 the Asylum and Refugee Law Project hosted a conference at The University of Queensland. The conference included guest speakers from UNHCR (Rick Towle), Australian Red Cross (Eve Massingham) and the Refugee Council of Australia (Bobby Whitfield) along with several legal academics from the TC Beirne School of Law. The final part of the conference was hosted by Paul Barclay from ABC Radio National. This forum on forced migration was broadcast on April 23rd at 8pm and the podcast can be accessed here.

Details of the conference were published by the UNHCR , and can be read here

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September/October 2011

Why is it that the most interesting developments in refugee law and policy always seem to happen at the same time as university assessment? We hope you enjoy the newest contributions by our contributors:

  • Danielle McKeen examines refugee flows from Afghanistan.
  • Rutaban Yameen & Sarah Brown explore the High Court’s reasoning in Plaintiffs M70/M106’s case.
  • Marissa Dooris muses on the consequences of the High Court’s decision to invalidate the Minister’s declaration with respect to Malaysia.
  • Dr Peter Billings has kindly made available an article published in a recent volume of the Griffith Law Review on the ethical, political and political rationales for policies of exclusion towards asylum seekers who arrive by boat and Indigenous Australians.

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