| by Laksiri Fernando

( August 20, 2014, Sydney, Sri Lanka Guardian) There were two court hearings in Australia and Sri Lanka on last Thursday (14 August) and Friday (15 August) respectively that drew our attention to the legality or illegality of refoulement (sending back) of asylum seekers to the countries that they have fled from. None is conclusive yet. This is in a background of new refugee influx in Mount Sinjar and Turkish border (number not confirmed) from the reprehensible persecution by the Islamic State (IS) or new conflicts in Iraq.

Since the end of the World War II, the refugee numbers have increased from 1 million to over 51 million now. These numbers include the ‘internal refugees’ that the UNHCR has counted and show the gravity of the situation arising out of mainly internal conflicts; ethnic, religious or political. Sri Lanka has so far been a source of refugees, and now it appears that it has also become a recipient as well. Perhaps this is not the first time that Sri Lanka became a recipient country.

Didn’t Vijaya and his retinue come to Vedda country as refugees? If we refer to more modern history, Orabi Pasha definitely was a refugee in Ceylon with seven others at the end of the 19th century. Henry Peter Thompson (The Battle for Singapore), refers to thousands of Europeans evacuated to Ceylon when Singapore was bombed by the Japanese in 1941. Patrick Peebles (The Plantation Tamils of Ceylon, p.46) says that because of the famine in South India, many Tamils were brought to Ceylon as (economic?) refugees. H. H. Austin who wrote his experiences as the person in charge of The Baqubah Refugee Camp (1920) indicated that some of the refugees were sent to Ceylon. By the way this camp was in Iraq and some of the Sri Lankans were assisting the camp as health and sanitary workers. These are some glimpses and not a history of the matter.

157 Tamil Refugees in Australia

I have already written on the subject of recent Tamil refugees in Australia (“Tamil Refugees, MH17 and Palestine,” 25 July 2014), with some other matters, which aroused some controversy. The boat originated in Pondicherry, India, early June and was intercepted by the Australian border petrol off Christmas Island on 29 July. This was beyond Australian territorial borders. All were believed to be Tamils from Sri Lanka, with 37 children and 41 women.

By the time of my previous writing they were kept in an Australian Customs vessel, Oceanic Protector. Then they were brought to Perth, Western Australia, on the understanding that India might take them back. Sri Lanka had already refused to take them back on the premise that the boat originated in India and not Sri Lanka. The Indian consular officers wanted to speak to the refugees, but they in turn refused to talk. India was reluctant to take them back without investigating their identities and background. Then it became solely Australia’s baby. Thereafter they were sent to Nauru for offshore processing or detention in early August, a decision which has become legally and socially controversial.

It is understandable that refugee influx is a problem for any country. There has been a considerable refugee inflow in Australia during the last decade. Offshore asylum applications for example have increased from 5,020 in 2003 to 26,427 in 1013. Boat arrivals in contrast to plane arrivals have also been dramatic during the same period. Undoubtedly people smugglers were involved in many of these cases. While the plane arrivals barely doubled (from 4,960 to 8,308), the boat arrivals were more than 300 times (from 60 to 18,119) during the same period. The last four years of this period were exceptionally high particularly in terms of boat arrivals or applications. There were 403 boats in 2012/3 in contrast to only 3 in 2002/3. 

Court Proceedings

However, there are certain international legal regimes to be followed in the case of refugees as in the case of human rights. More than the legality, there is an empathy required as it is a tragic human predicament. Refugee problem is also a human rights problem. When the High Court met on last Thursday, a senior Australian judge has questioned ‘whether the Australian government has authority first to detain asylum seekers on the high seas’ and second ‘to send them to another country offshore, after they were brought to Australia,’ whatever the reason. The government has to answer these questions in a week’s time.

Now the new arrivals are kept at a detention centre on the tiny South Pacific island of Nauru. It is believed that as the boat people were brought to Australia, they are entitled to certain rights as any asylum seeker arriving in Australia. These are defined by the “Convention Relating to the Status of Refugees” (1951) and the “Protocol Relating to the Status of Refugees” (1967). In respect of the previous asylum seekers, as the government has now taken a decision to release or absorb the children into the community, who were so far kept in detention camps within Australia, some have expressed the opinion that the same decision should apply to the children of the new arrivals of 157 Tamil refugees by boat and others in various detention centres offshore.

In Sri Lanka Court of Appeal’s preliminary decision on last Friday also was on the same lines. The Court suspended the government decision to send back Pakistani asylum seekers who are mainly from Christian or Shia communities from Ahamandi region. The petitioner, Ms. Anila Imran, in her application has told the court that Pakistani authorities persecute Christians and Shia Muslims in that region and they had arrived in Sri Lanka seeking protection. There are however fears that some of the political activists from Pakistan have also come to Sri Lanka as refugees with the intention of launching terrorist attacks on India. Under the Refugee Convention, no country is obliged to confer asylum to ‘terrorists’ or people with a criminal record.

Pakistani Refugees in Sri Lanka

As the available information reveals, Sri Lanka has already deported over 100 and a similar number still remains under detention or evading arrest. As the lawyers and the UNHCR have argued ‘Sri Lanka is in breach of its obligations under international law concerning the principle of no forced returns or non refoulement.’ However, Sri Lanka is not a party to the Refugee Convention while Australia is. Nevertheless the argument goes that main principles of the refugee convention now has become part of the international customary law and Sri Lanka is party to many concurrent human rights conventions that uphold the rights of the asylum seekers. Article 14 of the Universal Declaration of Human Rights declares the following.

“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

This right may not be invoked however “in the case of prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations.”

It is understandable that any refugee influx however small might be perceived a problem for a small country like Sri Lanka more than Australia. Sri Lanka has come out of a long drawn out war and the situation is still fragile. The religious tensions in the country is no better than Pakistan. However, Sri Lanka also should share a burden of refugee problem as many countries have been sharing. India for example was generous enough to entertain more than 100,000 refugees from Sri Lanka after the ethnic riots in July 1983. There should be empathy on refugees whatever the country they originate from, or whatever the country they arrive at. There should be more international cooperation to ease and solve the problem.

There were times that the governments and people in Sri Lanka were more sensitive and generous than today to the refugee issue. I was instrumental in making arrangements in 1985, as Secretary for Asia/Pacific of the World University Service (WUS), in bringing 14 Namibian refugee women to Sri Lanka for English teacher training under the Commonwealth Secretariat’s technical assistance. The cooperation of the government as well as the voluntary organizations was praiseworthy in this endeavour. It is true that those Namibian students were not seeking permanent refuge in Sri Lanka. It might not be the case even on the part of the Pakistani asylum seekers who are now in Colombo. They may need some breathing space until UNHCR or any other organization makes some permanent arrangements.

I also don’t see much problem even if some of them wish to settle and participate and contribute to the Sri Lankan society. We are living in a global society where increasingly people wish to move around and settle in countries that they wish to settle whether they are persecuted in their home countries or not. However, refugee problem is one that countries should try and find solutions both in a practical and a humanitarian fashion through mutual international cooperation.

Let me turn to the Refugee Convention at least briefly as a conclusion.

Refugee Convention

The Convention 1951 gave a broad definition to who is a refugee perhaps because of its limited application of that time to Europe and to the period prior to January 1951. But these geographical and time limitations were removed by the Protocol in 1967 and became universally applicable. This is a grumble that some countries now have. The following was what the UNHCR said about the definition of a refugee in 2011, commemorating the 60 years of the Convention. (I also give the relevant link below for anyone to go through the whole Convention).

“A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
http://www.unhcr.org/3b66c2aa10.html

It is important to note the words ‘unwilling to return’ along with ‘someone who is unable’ to return to their country of origin. The Preamble of the Convention did noted that “grant of asylum may place unduly heavy burdens on certain countries” and therefore called for international cooperation. However, there are so many rights (along with certain responsibilities) that the refugees have when they seek asylum.

Let me quote the UNHCR interpretation further, focusing mainly on two principles. First is the principle of ‘non-refoulement.’ Second is the non-penalization due to their illegal entry or stay.

The Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. Convention provisions, for example, are to be applied without discrimination as to race, religion or country of origin. Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum. Importantly, the Convention contains various safeguards against the expulsion of refugees. The principle of nonrefoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.

Finally, the Convention lays down basic minimum standards for the treatment of refugees, without prejudice to States granting more favourable treatment. Such rights include access to the courts, to primary education, to work, and the provision for documentation, including a refugee travel document in passport form.

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