Since October 27 last year, more than 1,070 Sri Lankan boat arrivals have been returned to their home country.
In the most recent repatriation last week, 73 of 79 Sri Lankans who arrived in Australia in the same boat were sent back. So how exactly were these Sri Lankans dealt with between their arrival on September 30 and their repatriation on October 21, and why does it matter?
The United Nation’s refugee convention prohibits states parties (of which Australia is one) from sending a refugee to any place where they would be exposed to persecution (unless certain limited exceptions can be invoked). This obligation is owed to any person who falls within the convention definition of “refugee”, regardless of whether they have been recognised as such by a state or other authority. A breach of this obligation is described as refoulement.
Australia is also party to other UN treaties such as the Convention against Torture and the International Covenant on Civil and Political Rights, which impose non-refoulement obligations. These obligations are not subject to exceptions, and apply to anyone who may face serious harm upon their repatriation, including those who do not qualify as refugees.
If a state wishes to avoid breaching its non-refoulement obligations, it must act on the presumption that a person seeking its protection is entitled to such protection unless and until a contrary determination has been made pursuant to a reliable process.
So, did the repatriation of the Sri Lankans only take place after they were reliably found to not warrant protection from Australia? The short answer is no. Rather, they were repatriated after being “screened-out”, or rejected, in a process labelled “enhanced screening”.
The former Labor government introduced enhanced screening last October to deal with the increased influx of Sri Lankan boat arrivals. It built on the immigration department’s “normal” border screening procedures, which were introduced in July 1998.
Under the enhanced screening procedure, Sri Lankan boat arrivals are individually interviewed by immigration department officers (with experience in protection decision-making) shortly after arrival.
Interviewees are not informed that they have a right to seek legal assistance. And although the immigration department has an obligation under the Migration Act to afford immigration detainees “all reasonable facilities” for obtaining legal advice if requested, it considers this obligation sufficiently discharged through the provision of an ordinary telephone directory.
During the interview, interviewees are asked: “what are your reasons for coming to Australia?” and, “do you have any other reasons for coming to Australia?” If the interviewee claims they are fleeing from harm, follow-up questions are asked to probe the claim further.
On the basis of the information gathered at the interview, the officer makes an initial finding about whether the interviewee has made claims which, prima facie, may engage Australia’s obligations under the refugee convention or other treaties. The information is then forwarded to a more senior departmental officer for review, usually on the same day.
If the senior officer agrees with the initial finding, it is confirmed. If the senior officer disagrees with the initial finding, the case is referred to a second senior officer for another opinion. If the two senior officers disagree on whether an individual should be screened-out or not, the individual receives the “benefit of the doubt” and is “screened-in”.
A person who is screened-in is, as an “unauthorised maritime arrival”, required to be taken to Nauru or Papua New Guinea for processing, unless the immigration minister exercises personal powers to exempt that person from transfer and to allow them to access the onshore refugee status determination system.
A person who is screened-out is returned to Sri Lanka as quickly as possible.
What’s the problem?
Statements made by department officers suggest that the enhanced screening procedure incorporates an assessment of whether protection claims are credible and well-founded, even though the department’s only concern should be whether protection claims have been made.
Although the department formally denies the practice, it is hard to understand why the interview script provides for further probing of initial claims of harm if the screening process is not intended to determine the validity of an asylum seeker’s claim. Further, journalists and lawyers (among others) have claimed to have evidence that individuals have been screened-out despite making prima facie claims for protection.
Most damning of all, former immigration department officer Greg Lake has revealed that the department was under enormous pressure from the Labor government to achieve a target of about 400 repatriations a week.
The political pressure has only increased under the Coalition government, with the current immigration minister Scott Morrison implying that the proportion of screen-outs under the Labor government was too low.
From the publicly available information, it seems that enhanced screening has only been used to deal with Sri Lankans arriving by boat. The Labor government further limited itself to applying the process to those travelling directly from Sri Lanka.
However, Morrison has stated that the Coalition government will apply the process to all Sri Lankans “regardless of their pathway to Australia”. He has also made it clear that the Coalition government’s inclination is to use the procedure in relation to other source countries also, if involuntary repatriation arrangements can be put in place with those countries.
The lack of access to review which is independent of the immigration department and the usual lack of access to legal assistance makes enhanced screening an unfair and unreliable procedure giving rise to a high risk of refoulement. This is a view which is shared by the Office of the United Nations High Commissioner for Refugees and the Australian Human Rights Commission. We cannot profess to be taking our international protection obligations seriously unless and until enhanced screening is discontinued.