Asylum seekers - where to next?

Asylum Seekers and the legal process ... High-powered panel thrashs out complex issues that are likely still to come before the High Court ... Can the government hold people at sea? ... Maritime Powers Act in play ... Nina Ubaldi reports 

Customs vessel Ocean Protector: home to 157 asylum seekers for the better part of a month

IT seems inevitable that the case of the 157 Tamil asylum seekers now at the Curtin detention centre in Western Australia will head back to the High Court. 

A claim for false imprisonment is now part of the case, as is the power of the government to hold people on the high seas for nearly a month. 

Can the government return people to places from where they launched their bid for asylum? 

Border Protection Minister Morrison announced on Friday (July 25) that the detainees onboard the Ocean Protector would be sent to Curtin for "processing" by Indian government officials.

A few days before the announcement there was an interesting panel discussion in Sydney which canvassed the legality of the government's handling of these asylum seekers. Some of these issues are still in contention and likely to be before the court at some point reasonably soon.

Four of the leading authorities on refugee and constitutional law assembled to thrash out the complexities:

• Professor Jane McAdam from the Kaldor Centre for International Refugee Law;
• Professor George Williams from UNSW law school;
• Associate Professor Tim Stephens an expert on law of the sea from Sydney Law School; and
• Edward Santow, the CEO of PIAC and co-author of an investigation into the crimes committed during the final stages of the Sri Lankan civil war. 

The seminar was organised by the Andrew and Renata Kaldor Centre and hosted by Gilbert + Tobin. 

McAdam: refoulement

G+T partner Stephen Glass was in the chair and Justinian reporter Nina Ubaldi was ringside with her notebook to get the key points: 

Steven Glass: A question to Ed. What is the current situation in Sri Lanka? What is the position of Sri Lankans seeking to leave the country without authority? What are the findings that PIAC made about Tamils in Sri Lanka?

Ed Santow: Tourists visiting Sri Lanka may not notice anything, particularly in the south. Most Australians tend to get their impressions of Sri Lanka from seeing the cricket team. The situation of the ground is very different. The picture developed by the UN, nation states and international organisations is very very concerning. 

The Human Rights Committee in March this year considered Sri Lanka to be one of the most concerning issues and it had most of the attention of diplomats. Ultimately the UN resolved to further investigate the violations occurring, particularly over the last ten years, although they continue to occur now. 

Turning to NGOs, the Human Rights Watch report, entitled We Will Teach You a Lesson concerned 75 cases of alleged rape and sexual assault between 2006 and 2012.Yasmin Sooka, from the England and Wales Human Rights Commission, has reported on sexual violence and torture in Sri Lanka and detailed systemic rape, torture and violence that continues to occur. The International Commission of Jurists has also reported on Sri Lanka. Australia's Department of Foreign Affairs and Trade has itself made submissions to the UN about ongoing human rights abuses in Sri Lanka.

People still suffer persecution and much worse in Sri Lanka. It is much worse if you are Tamil or Muslim, but other groups are still at risk. 

In relation to whether it is lawful to seek asylum [in Sri Lanka], no. It is unlawful to depart other than from an official port and to return in the same way. 

PIAC investigated alleged war crimes and crimes against humanity committed by both sides during the final stages of the Sri Lanka civil war.

We reported that the Sri Lankan government committed very, very serious war crimes and crimes against humanity. For example bombing and heavy artillery in places where civilians had been encouraged to congregate, denial of the most basic humanitarian assistance such as food and medical supplies, and very serious allegations of extrajudicial killings, sexual violence and torture.

In relation to the Tamil Tigers, there were serious and credible allegations that they used human shields and used children as soldiers. 

The reverberations of the civil war continue to echo strongly ... sexual violence and "white van disappearances". It would be shocking if Sri Lanka was anything other than a refugee-producing country.

Steven Glass: What about Australia's legal obligations internationally in relation to refoulement? The Australian government imply that the obligation does not apply outside Australian territory. 

Jane McAdam: The obligation of non-refoulement is provided for in a number of treaties that Australia has voluntarily signed on to. It has also crystalised into customary international law so it applies irrespective of whether Australia has signed.

It prevents the sending back of a person to a place where they have well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Human rights law extends further so that you can't send a person back to where there is a risk of torture or real risk of arbitrary deprivation of life or cruel or inhumane treatment. 

Where does it apply? Is it just on territory or in the waters of Australia or anywhere Australian officials act, such as aeroplanes, the high seas, outside Australia's territorial waters? 

Internationally there is virtually uniform authority that those obligations do apply extraterritorially. Where Australian officials or contractors act, Australia is responsible.

Only the US has said that Refugee Convention does not apply extraterritorially. That is how they interdict and expel Haitians and Cubans. However, the US Supreme Court said that it was not competent (in two senses) to rule on the international legal obligations of the US. They were really interpreting a domestic statute. The UNHCR has spoken out against the Supreme Court, saying its approach is incorrect as a matter of international law.

Not one country has contradicted the UNHCR. In international terms that is very strong indication that states consider the US to have gone out on a limb. 

Recent events do not engage the Migration Act. To what extent are international obligations part of the common law? It is a very interesting question. There is some authority, but in different contexts. It is open to the High Court to change the authority that we have.

Steven Glass: In 2001 in the Tampa case the Full Federal Court held that the Commonwealth had the power to intercept vessels and control national borders. The majority included the current chief justice of the High Court, Chief Justice French. Does that case discuss the issue?

George Williams: People have described the current case as Tony Abbott's Tampa moment. He certainly hopes that this is his Tampa moment. 

This case is very different. Tampa was a writ of habeas corpus. They lost in the Full Federal Court, the injunction lapsed. The Victorian Council of Civil Liberties and Eric Vardalis were threatened with being personally liable for costs. It threatened their homes, their livelihood, their property ...  

The government sent the asylum seekers to Nauru and New Zealand. The High Court said that they couldn't hear the case because the asylum seekers were no longer in detention and were beyond jurisdiction. Once beyond the border, do not expect the High Court to intervene. That is why it is very important to maintain the injunction. 

This time the lawyers are not seeking a writ of habeas corpus; they are representing the asylum seekers directly. So the lawyers won't be liable for costs although the asylum seekers might be. 

Here the Migration Act is not engaged, it is the maritime legislation. The High Court is not beholden to Tampa. No precedent binds the court at all (in this area). Although French CJ decided the earlier Tampa case, he himself is not bound. In fact the Gillard government was frustrated by judgments that they saw as entirely inconsistent with his earlier judgment. 

Steven Glass: The boat is 12-24 miles offshore of Christmas Island. 

Tim Stephens: The government has very deliberately ensured the Migration Act does not apply. Instead, it's the Maritime Powers Act. Whether it enables the government to detain or expel aliens, we don't know. It is a relatively short piece of legislation - just 122 sections. It is a fairly inscrutable piece of legislation. It doesn't really serve its purpose to make clear (the law in this area). 

It certainly allows the Commonwealth to respond to customs breaches, including in the contiguous zone. Under the law of the sea and the Maritime Powers Act, the government can interdict ships for immigration, tax, customs, or quarantine matters within the contiguous zone, which is 12-24 nautical miles off the coast. 

Does that power extend to allow the Commonwealth to detain people outside the contiguous zone on the high seas? To what extent is refugee law added into the mix?

Could it be affected by Australia's acceptance of non-refoulement obligations? It is a really interesting set of questions. A lot will depend on statutory interpretation. In that sense, it very different to Tampa, which was about executive rather than statutorily-authorised power. 

Steven Glass: The term "enhanced screening", what does it mean? What does it look like on the ground? How does it accord with international obligations? In many ways "enhanced screening" is diminished screening ... 

Jane McAdam: Normally refugee status determinations require case-by-case analysis. Evidence is provided by the government and asylum seekers – country of origin conditions, personal circumstances, what has happened to other people like you – to determine whether there is a well-founded fear of persecution. You have the opportunity to have the decision reviewed, judicial review for error of law, and normally access to a lawyer and legal assistance. 

In relation to enhanced screening, it depends on your perspective whether it's enhanced or diminished ... 

They ask four questions: your name, your date of birth, your country of origin and your preferred language; not why have you come here or whether you fear persecution. In no way, shape, or form could that be considered adequate.

Since 2012, enhanced screening procedures have been applied to Sri Lankans who arrived here. The government said they were not fully conducting the refugee status determinations, just seeing if the claims were plausible. They have essentially made up the tests. I don't know whether they are legal under international law, whether Australia is upholding our obligations in good faith. 

The road to Curtin detention centre

Steven Glass: What limits are there to the Commonwealth's constitutional power under section 61? The National Security Committee of Cabinet?

George Williams: I'm always concerned when a government describes something as "enhanced". The US government described water boarding as "enhanced interrogation". When the government uses the word "enhanced", it's inevitable that it's exactly the opposite.

The government needs to provide lawful authority ... If not under the Maritime Powers Act, then under non-statutory executive power based on the sovereign rights of the government. The High Court needs to answer, "does that power even exist?", the power to pick-up and remove asylum seekers to a place of their choosing.

In Tampa, French CJ said "yes" and that power was not removed by the Migration Act. The High Court faces the same question but in different context. Here, it is the Maritime Powers Act. So it gives French a plausible reason. This is very important – lawyers can say, "this is a different context, you don't need to lose face". 

They could say the power is limited. Section 75(v) provides for certain forms of review. So procedural fairness, natural justice, a fair hearing ... Can you read in procedural fairness? M61 said "yes", you read procedural fairness in. S10 however held no right to procedural fairness in a different context. It depends on the words of the statute. 

In this case, the new statute is inscrutable and it's (a new consideration of) executive power. You can't say one way or another. 

Steven Glass: Is this piracy?

Tim Stephens: It's not piracy. Piracy is the Pirates of the Caribbean situation – one ship attacks another for private gain. But it is quite extraordinary and unprecedented. 

For example, if this were drug running or arms running, the people would be brought to shore and prosecuted. The hangers-on would not be imprisoned. This is treating it in quite a radical way not seen in state practice.

As a matter of law of the sea, it is highly questionable that the government can detain asylum seekers ... Query the power and authority to remove asylum seekers to another country. There are also question marks as to the treatment of the vessel. The ship was in difficulty, so that engaged Australia's maritime safety obligations.

My opinion is that a place of safety is not the Ocean Protector. The most convenient place of safety would be Australian territory. 

Ed Santow: My own view is that the executive power is not a source [the government] can rely on. They passed the Maritime Powers Act, which, to use a constitutional law phrase, covers the field. Does the Maritime Powers Act allow it? It grants powers to detain and remove in accordance with Part 2 of the legislation.

Under Part 2, any use of force must be necessary and reasonable in the circumstances. Secondly, the Australian government can only detain and remove ships in the contiguous zone if investigating or preventing, amongst other things, a breach of Australia's immigration law. 

Whether on not in doing that they can ride roughshod over the obligation to provide natural justice ... Simply asking four questions that bear no relationship to whether the person is seeking asylum, let alone the merits of their claim, is not affording procedural fairness.

George is right, the authority goes both ways. But the better view is that it is very difficult to exclude natural justice. 

If the court agrees that the only lawful source is the Maritime Powers Act and that the drafting is not crystal clear, then in line with principle, such as from Mabo and Coco v R, the court will not presume that Parliament intended to abrogate fundamental rights.

My own view is that the Tampa case is of limited relevance and that the High Court may take this opportunity and afford a right of procedural fairness, afford the protection of our laws, that the Parliament is not presumed to abrogate fundamental human rights.

Question from the audience - The Rule of Law Institute: What key rule of law issues does this raise?

George Williams: It is hard to imagine to a case more related to the rule of law – arbitrary, unchecked power over people at their most vulnerable, in circumstances where they can be removed to another country including the one they tried to flee. The High Court, you would hope, would have a role in checking that power. If allowed, it poses a serious question as to the rule of law in Australia. 

Question from the audience: What issues does the Convention on the Rights of the Child raise? Who would have answered the four questions for the children?

Jane McAdam: That is a great point. The Convention on the Rights of the Child echoes some of the obligations in relation to no return. Also Article 3 states: in any decision affect the rights of a child, the best interests of the child shall be a primary consideration. From Teoh, we assume that unless the statute expressly displaces an international obligation, our laws are read in accordance with it.

Who answered for the children? I don't know. The Immigration Minister is appointed as guardian of children, which raises a very serious conflict of interest. 

Question from the audience (Heydon Wardell-Burruss): Were there any measures in drafting the Maritime Powers Act to ensure that it did not cover the field?

Tim Stephens: Not that I know of. 

Jay Williams (barrister): The Maritime Powers Act was considered by the Senate Legal and Constitutional Affairs Committee. The Coalition's dissenting report opposed the act, because it clearly demonstrated an intent to cover the field. They thought it would deny them the power to exclude. The Coalition thought it would exclude what they are doing now. 

Question from the audience: Bob Carr said that Tamils no longer have to fear persecution in Sri Lanka. What are your thoughts on this?

Ed Santow: With great respect for the former Premier Mr Carr, people can confuse what they want the situation to be and what it really is. We are a legal organisation. All we do is follow the evidence. The evidence, unfortunately, does not support Mr Carr.

Emily Howie, at the Human Rights Law Centre in Victoria did a study on "failed asylum seekers" in Sri Lanka. Many of Australia's allies, including Canada, and many others say that it is clearly not safe for Tamils in Sri Lanka, particularly in the north. 

George Williams: What happens if they lose? Can they be taken to any place the government is willing to take them? Even if they win, they can be taken to Christmas Island and then any other place they want to remove them to – Nauru or even Sri Lanka. Once onshore, then it would be removal to Papua New Guinea. 

In Plaintiff S156 it was argued that the government can't designate any place including the place they are seeking asylum from. The High Court said this might be a departure from Australia's human rights obligations, but that it is a matter of political will. 

Jane McAdam: It is still unlawful under international law. So what? Most countries would be too embarrassed. Australia's reputation has been degraded. Is it possible to have sanctions etc? The case of the US suggests not. But it might be a step too far. 

Question from the audience: What about the other, earlier boat? It seems to have been thoroughly refouled.

Jane McAdam: The 41 raise many of the same issues. Unless refugee status is determined we can't say whether or not non-refoulement was breached. In relation to deterrence, if you actually had a thorough process and return people that don't engage protection obligations, that would be it and that would be lawful. 

Jay Williams: We have been in contact with the 41 and are taking action. That might be a more appropriate test of international principles in Australian law. 

George Williams: Although it may cause problems that they are in Sri Lanka. The High Court, like in Tampa, may decide it is outside their jurisdiction. But there might be private law remedies. 

Question from the audience: What is the mood in the nation?

Ed Santow: Current and former academics are probably not the best barometer ... When you have really really difficult human rights issues, in some ways court is the worst place because of the way it divides it into clinical issues. 

But in the past we've seen the process of High Court liberation, such as Mabo in our approach to native title. I'm not saying this will be a Mabo moment as opposed to a Tampa moment, but it might provide an opportunity for reflection. 

Justice Hayne: case could go back to him for further directions

George Williams: Tampa crystallised a political narrative that the government is able to whatever it wants. Even if the government loses, the opposition in all likelihood will cooperate. The Malaysia case for example enabled the more extreme PNG solution. 

Question from the audience: Either way, win or lose, the government has the power to do whatever it wants. Could this provide for a fair process or international rules?

Steven Glass: What's the best we can hope for?

George Williams: The High Court could read in limits. It could read into the Constitution the right of natural justice. 

Politically, domestically, we're designating countries. That's just a step along the way. It's not likely to lead to the outcome the asylum seekers would like – to come to Australia and settle here. 

Question from the audience: Surely someone while being asked the four questions said they were seeking asylum. Were the questions recorded? Is the ship Australian territory?

Tim Stephens: We assume they were asked on Australian vessels. It is not strictly part of Australian territory, but it is within Australian government control and obligations under the Refugee Convention. Imagining the officers stickers their fingers in their ears is pretty scary – it's a Kafkaesque picture. 

Jane McAdam: It's unclear whether people thought it was an initial interview. Asylum seekers aren't coached to say magic words. They may well be traumatised and fearful of authority. 

What we know is that in relation to the Haitians the US had a "shout test". If you shouted loudly enough, they may screen you. They also have a 'wet foot, dry foot' policy. There was a case where a bridge collapsed, but these are domestic law fictions. 

There is no right to claim asylum from an embassy (except for a few countries in Latin America that recognise that). The Refugee Convention requires you to be outside your country of origin. The Baktiari brothers got to the British Consulate and claimed protection under the ECHR to prevent being sent to Woomera and inhumane or degrading treatment. But the court treated them like fugitives and returned because they were not at immediate risk of severe harm. 

Steven Glass: Are the four questions designed to feed the policy decision of the National Security Committee of Cabinet?

Ed Santow: The questions don't ask: is this person a potential refugee? They would only make sense if you took the view that a person from Sri Lanka could not possibly be a refugee.

George Williams: The Migration Act was amended so that you are not eligible to be declared a refugee if you don't have security clearance. 

That's a reasonable supposition, but we don't know. 

Question from the audience: How long can this go on for? What happens if somebody dies?

George Williams: As long as the injunction lasts ...

Tim Stephens: If a tragedy did occur, such as severe illness or death, there may be private law remedies such as false imprisonment or trespass to the person.