Australia’s Practice of Boat Turnbacks
This article explains why Australia’s practice of boat turnback is inconsistent with its treaty-based non-refoulement obligations.
Operation Sovereign Borders
On 18 September 2013, Australia’s then newly elected Coalition government established Operation Sovereign Borders. The boat turnback policy is a central element of Operation Sovereign Borders. The government is very keen to publicise that the policy continues and that it has largely succeeded in preventing unauthorised boat arrivals in Australia. Publicising these facts is intended to discourage people from embarking on such ventures in the first place and also to garner votes for the Coalition parties from those sections of the electorate that object to unauthorised boat arrivals. Labor used to oppose boat turnbacks but no longer does, because it is afraid of losing voters over it.
While the generic term used is ‘turnback’, in Operation Sovereign Borders jargon there are actually three categories of activity: turnback, take back and assisted return. Turnback refers to the forced return of unauthorised maritime arrivals to their most recent country of departure (usually Indonesia) in either their own or a substitute vessel. Take back refers to the handing over of unauthorised maritime arrivals to country of origin authorities. The take backs which have occurred thus far have been of Sri Lankan and Vietnamese asylum seekers. Assisted return refers to return of people rescued at sea.
The first step in all three activities is interception of vessels by the Australian navy. The moment the Australian navy intercepts a boat, the people on it are under the effective control of Australian officials thus bringing its non-refoulement obligations into play.
Australia’s non-refoulement obligations
Australia is a party to the Refugee Convention and its Protocol. Of critical importance is article 33(1) of the Refugee Convention which prohibits the sending of a refugee directly or indirectly to any country where they have a well-founded fear of being persecuted on Convention grounds, unless an exception in article 33(2) can be invoked. If a state party wishes to avoid breaching this non-refoulement obligation, it must act on the presumption that a person seeking its protection is a refugee unless and until they are found not to be one pursuant to a reliable refugee status determination process.
Australia also has non-refoulement obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights. While these treaties protect against a more limited range of harm than the Refugee Convention and Protocol, the protection is owed to all persons without exception.
All of Australia’s non-refoulement obligations are applicable not only within its territory but also extra-territorially wherever persons are subject to the effective control of its officials or other agents.
Screening for prima facie protection claims
Since 1998 unauthorised arrivals presenting at Australian airports and seaports have been given brief screening interviews for the purpose of identifying prima facie protection claims. When unauthorised boat arrivals recommenced during Labor’s last stint in office, the screening procedure was ‘enhanced’ and applied to those coming directly from Sri Lanka. When the interception of boats commenced under Operation Sovereign Borders, the screening of the people on those boats started being conducted on the water in most cases. Until recently, what little evidence was publicly available seemed to suggest that this screening was only conducted in the case of take backs. However, in 2018 the government asserted that screening was also conducted in the case of assisted returns and turnbacks. Whether that has always been the case is not clear.
Where practicable, unauthorised arrivals who are screened-out are returned to their most recent country of departure, even if that is their country of origin. Until the latter part of 2012, people who were screened-in were usually allowed to make onshore protection visa applications. Since the then Labor government designated Nauru and Papua New Guinea as regional processing countries in the latter part of 2012, unauthorised maritime arrivals who are screened-in have been subject to being taken to a regional processing country to have their protection claims considered by the government of that country. The processing centre in Papua New Guinea was closed at the end of October 2017, but the processing centre in Nauru is still available for use.
The on-water screening procedure
A 2018 government procedural instruction partially released under Freedom of Information legislation contains the most up-to-date publicly available information about the on-water screening procedure. According to the document, a screening interview is usually conducted face-to-face. Moreover, it should be conducted by an official with non-refoulement training and an interpreter should be used where appropriate. So far so good, though there is no way of knowing whether what should be done is in fact done in all or even most cases. This is because contrary to the recommendation of the UN Human Rights Committee, neither the Office of the United Nations High Commissioner for Refugees (UNHCR) nor any other independent observer is allowed to monitor on-water screening. Moreover, intercepted persons are not given access to legal assistance let alone the ‘independent, qualified and free-of-charge legal assistance’ which the Committee Against Torture has recommended as a minimum procedural safeguard against refoulement.
The purpose of the interview is ‘to ascertain the person’s reasons for attempting to enter Australia and whether those reasons indicate the person may potentially engage non-refoulement obligations.’ However, it does not appear that interviewees are informed of Australia’s non-refoulement obligations. Since interviewees are not given access to independent legal advice either, there seems to be a considerable risk that individuals, who are in fact entitled to Australia’s protection, may through ignorance fail to put forward relevant claims.
The interviewer is instructed to make a written record of the interview which is as far as possible verbatim. This complies with a procedural standard recommended by UNHCR. The interviewer is also instructed to record any relevant observations (for example, whether the interviewee appears distressed, shows signs of torture or trauma or has an obvious physical impairment). On the basis of this interview report, another official then assesses whether the interviewee may potentially engage Australia’s non-refoulement obligations. The outcome of the assessment is notified to the interviewee but there is no indication that written reasons or even oral reasons are provided for a negative outcome. The reason UNHCR and others specify the provision of full written reasons as a minimum procedural standard is that it is difficult to challenge a decision unless one knows the basis on which it has been made. This reasoning assumes, of course, that recipients of a negative decision are given the opportunity to challenge it. In fact, screened-out individuals are given no such opportunity, though, according to the Committee Against Torture, the opportunity to obtain merits review of a negative outcome is itself a minimum procedural standard.
It is theoretically possible for a person who is screened-out to seek judicial review of the decision. However, even if a person detained on a boat out at sea without access to a lawyer manages the feat of seeking judicial review, doing so would be futile. For a start, the court cannot consider whether the decision maker has got the facts right. It can only consider whether the decision maker has got the law right. The relevant law is contained in the Maritime Powers Act 2013 (Cth). Since December 2014, the Act has expressly stated that inconsistency with Australia’s international legal obligations cannot result in invalidation of the exercise of the powers it bestows and that the rules of natural justice do not apply.
In summary, the on-water screening procedures lack some of the minimum procedural safeguards that are necessary for reliable decision-making in the asylum-seeking context. The absence of these safeguards gives rise to a high risk of refoulement. Moreover, the screen-in rate give rise to the suspicion that the risk has materialised. As at 30 June 2019, the cumulative Operation Sovereign Borders boat count stood at 35 boats carrying 847 people. Of all those people, only two have been screened in: one in July 2014 and the other in November 2014. On the other hand, as at 30 June 2019, 185 Sri Lankans from ten intercepted boats had been taken back to Sri Lanka. Further, as at that date, 113 Vietnamese from three intercepted boats had been taken back to Vietnam.
The inadequacy of diplomatic assurances
Both Sri Lanka and Vietnam make it a criminal offence for people to leave the country by irregular means. According to evidence given in Senate Estimates, however, Australia obtains written assurances from Vietnamese authorities that the people it hands over will not be penalised for illegal departure. Presumably, the practice of obtaining assurances pertains in relation to Sri Lanka also. Regardless, the prospect of prosecution and proportionate punishment for breach of country of origin border control law does not of itself give rise to a sur place refugee claim. The problem is that that an assurance that a person won’t be penalised for illegal departure does nothing to address other dangers. Even if Sri Lanka and Vietnam gave comprehensive assurances that returnees would be treated in accordance with human rights standards, Australia would need to consider in the light of past experience whether the assurances could be relied upon in all the circumstances of each particular case. There is no evidence that it does this.
In fact, a number of people whom Australia has handed over to Vietnamese and Sri Lankan authorities have subsequently claimed to have been tortured or similarly mistreated while in the custody of those authorities. There has also been an instance where people intercepted by the Australian navy and handed over to Sri Lankan authorities subsequently made their way to Nepal and were recognised as refugees by UNHCR. Similarly, there has been an instance where people intercepted by the Australian navy and handed over to Vietnamese authorities subsequently made their way to Indonesia and were recognised as refugees by UNHCR. While it is not possible to be definitive without knowing all the facts, the UNHCR findings raise the strong suspicion that in both instances Australia breached its non-refoulement obligations.
In conclusion, Australia’s on-water screening procedures do not meet the minimum procedural standards necessary to safeguard again refoulement and there is compelling evidence that refoulement has occurred in at least some cases. But the boats have been stopped and that seems to be all that matters to the Australian electorate.
Dr Savitri Taylor (firstname.lastname@example.org) is an Associate Professor at the Law School of La Trobe University (Melbourne Australia). Her primary research focus is on refugee law and asylum policy at the national, regional and international level. A list of her publications can be found on her staff profile page.