09 July 2010

Returning Sri Lankan and Afghan asylum seekers

Article 1 of the United Nations Convention and Protocol relating to the protection and status of refugees defines a refugee as follows:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Unfortunately, while this definition covers a wide variety of the circumstances which would lead a reasonable person to flee his/her country, it is not as comprehensive as it might at first look. The whole framework of the Convention requires that people have a well-founded fear of persecution, and that that persecution be motivated by an admittedly wide range of circumstances.

On the face of it, however, it does not cover people who are not in danger of being persecuted as such, but are fleeing the dangers of an outbreak of large scale violence occasioned by invasion, civil war or a breakdown of public order.  The pathetic streams of civilians fleeing French cities during the German invasion in World War II would be hard put to it to claim refugee status in accordance with the Convention’s definition – they are fleeing the bombing and shelling, not persecution as such.

Some African and Latin American countries have sought to address this deficiency in their own practice. The Organisation of African Unity adopted an additional definition that a refugee is

Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.

Under the Cartagena Declaration of 1984 a group of Latin American countries defines “refugee” to include

Persons who flee their countries because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.

Unfortunately we are not so enlightened in relation to this matter, so our government does not necessarily accept that fleeing generalised violence, massive violations of human rights or serious disturbances to public order provides valid grounds to claim refugee status.  The individual must have a “well founded fear of persecution”, which suggests being able to establish that the government or some dominant group in the country of origin would have malign intent towards him/her. A well founded fear of stepping on a land mine would not be enough, apparently.

This gap in the Convention and our domestic law provides a nasty little loophole through which the Government can begin to return refugees to Sri Lanka and Afghanistan, on the basis of an alleged improvement in the circumstances in those countries.  I would not accept that circumstances have improved to the point where Tamils could be considered safe in Sri Lanka, or members of the Shi’ite Hazara minority could safely be returned to Afghanistan, but the Government can assert so. 

That is not the end of the story, however. As Greens Senator Bob Brown pointed out recently on ABC TV’s 7.30 Report (see transcript here), every applicant for refugee status in this country has to have their individual circumstances examined and their claims properly and legally processed.

The problem is that the Government’s assertion that circumstances in these two countries have improved to the point where refugees can safely be returned to them forces upon the individual applicants the much more difficult task of making a case in relation to their own particular circumstances, rather than relying on the overall circumstances in their country of origin. The mandatory detention of asylum seekers in remote camps is designed to reduce their chances of success by minimising their access to legal advice which would assist them in pursuing their rights under Australian law.

We ought to be better than this. We ought to be much, much better than this.

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