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Refugees and Australia's shrinking
map
By Alan Boyd
SYDNEY - At
the start of the week Australia took charge of the
leading United Nations human rights watchdog. By the end
of the week it was being chastised for allegedly dumping
unwanted refugees on its Asian neighbors.
And
there was worse to come. Canberra was forced to retract
a denial that the 14 Kurds at the center of the row had
sought asylum after the government's own task force said
that the senior minister in charge had got the story
wrong.
The central issue is whether Australia, a
signatory to the 1951 UN Refugee Convention, contravened
its international obligations by sending the leaky boat
back to its embarkation point in Indonesia - which is
not a signatory. UN officials have no doubts over the
issue.
"This denial of access represents a
breach of Australia's obligations under international
law and undermines the system of asylum protection,"
said Janowski Kris, a spokesman for the United Nations
High Commissioner for Refugees (UNHCR) in Geneva, which
was denied access to the boat people. "Our main concern
is that people who are already vulnerable have been made
even more vulnerable by Australia's neglect of its
international obligations."
Canberra insists it
was not responsible for their welfare because the atoll
where they landed was retrospectively excised from
migration statutes shortly afterward, along with 4,000
other islands, thus denying them access to the legal
system.
Most of the top end of Australia's
maritime waters has in effect been rubbed off the map
since 2001 in a controversial policy aimed at excluding
anyone who has not been through the normal migration
channels.
According to testimony in Jakarta by
the Kurds, who claimed to be fleeing from political
persecution in Turkey, security forces towed their boat
back to sea even while they were trying to request
asylum in broken English.
Despite a dangerous
20-day sea crossing, they were allegedly refused medical
treatment and food supplies during a subsequent wait of
four days in offshore detention. Three were later found
to be ill, including one who had a heart condition.
Foreign Minister Alexander Downer and
Immigration Minister Senator Amanda Vanstone both issued
denials that the "unauthorized arrivals" had made any
formal applications to stay.
But the Kurds'
version of events was supported by a government task
force on people-smuggling, which confirmed they had used
the word "refugee" with Australian officials and clearly
were scared of being returned to Turkey.
Vanstone, while acknowledging on Friday that her
information might have been incomplete, insisted that it
made no difference to the way in which they would have
been treated.
"The key point is these people
were not in the Australian migration zone. They were
always going to be sent somewhere else by the Australian
government where any claims they might make would be
properly processed," she said.
The UNHCR
argument, backed by many human rights lawyers, is that
the "migration zone" is not tenable in international law
because it amounts to an internal administrative
arrangement. Australia's international borders have not
altered, and the Kurds landed within the established sea
boundary; so the UNHCR contends that Canberra is still
committed to extend full refugee-processing
rights.
Signatories to the Refugee Convention are
obliged to consider any requests for asylum and by
extension must ensure that expelled boat people are not
sent to a country where they might face persecution. As
Indonesia has not joined the convention, it could
technically repatriate the Kurds without regard to
political conditions within Turkey, though the UNHCR has
asked that they be permitted to stay.
In a
further complication, Canberra has asserted that a deal
was made with Jakarta, before the Kurds were towed back
out to sea, for Indonesian immigration officials to
process any asylum claims.
Prime Minister John
Howard insisted on Friday that Indonesia "knew in
advance what we were going to do and did not express any
formal objection to it". This has been denied by
Indonesian officials.
On the contrary, Jakarta
reacted angrily when the Kurds arrived in its waters,
even though the boat was carrying Indonesian
registration, and there was no dispute that they had
started the final part of their journey in the
archipelago. Indirectly accusing Canberra of abdicating
on its responsibilities under the Refugees Convention,
the Indonesian government said it intended to hold an
inquiry into Australia's handling of the issue.
People-smuggling has long been a contentious
point between immigration authorities in the two
countries, but Canberra says cooperation has improved
markedly since the 2001 policy went into effect.
"Our biggest difficulty has been to convince
some Indonesians that people-smuggling does constitute
an immigration and security threat, and that Indonesia
is just as vulnerable as we are," said an Australian
diplomat. "Bali has helped change the mindset, but the
legal framework is still thin."
The terrorist
bombings at several Bali bars late last year shifted the
focus squarely to security, with Australian intelligence
agencies contending that illegal migration could be used
as a cover for extremist activities.
Most boat
people use an underground network of smugglers and
suppliers on the Indonesian archipelago to prepare for
the sea crossing to Australia. Some also get help from
corrupt government officials.
Indonesia has
responded by drafting its first specific penalties for
smugglers caught assisting boat people. An amended
immigration law, with a maximum jail sentence of 15
years, is expected to take effect early next year.
Australia cited the enforcement problem in
Indonesia as partial justification for the original
decision to implement the exclusion policy, which is one
of the toughest adopted by a developed nation.
There has been no weakening of this resolve,
even though the latest test has come at an embarrassing
time. While the diplomatic wires were still buzzing,
Canberra was being nominated to succeed Libya as
president of the UN Human Rights Commission under a
revolving arrangement between the Third World and
developing nations.
The UNHCR, a sister
organization, has harshly criticized the Australian
strategy since a 2001 incident when immigration
authorities refused to allow a boatload of Iraqis and
Afghans to land after they were rescued in international
waters by a Norwegian vessel. Government leaders
claimed, erroneously, that some of the boat people had
thrown their children overboard in a desperate attempt
to secure asylum. Most were later given asylum
elsewhere.
Domestic support for the policy is
still strong, with senators in the upper house of
parliament this week blocking attempts by a loose
coalition of independents and Green Party members to
have the exclusion laws revoked.
Yet the legal
contortions needed to keep one step ahead of the
people-smugglers are proving hard to sustain as the
syndicates become ever more brazen and the migration
zone creeps steadily southward. Melville Island, the
most recent arrival point to be excised, is only 80
kilometers from Darwin, the capital of Northern
Territory, raising the possibility that the city itself
may eventually have to be brought under the zone.
Downer is unmoved. His office says the
government is "fully prepared to extend the migration
zone to areas of the mainland if necessary" to protect
its long coastline.
(Copyright 2003 Asia Times
Online Co, Ltd. All rights reserved. Please contact content@atimes.com for
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