Australia has therefore put itself at risk of breaching the principle of non-refoulement, simply by transferring asylum seekers to PNG in the first place.”
At the end of August this year, the Supreme Court in Papua New Guinea (PNG) issued an injunction to stop the government there from forcibly removing asylum seekers for deportation to their home countries. Two asylum seekers had already been returned to Iran in the week before the injunction was granted, despite the fact that there was a case before the court to stop their deportation. Just before he was deported, one of the two men wrote a letter that read:
Not leaving the compound that I am living in and/or not wish to be returned to my country of origin against my will.
The PNG government, by deporting these men, was likely to have committed the most serious breach of the Refugee Convention and of customary international law, that of refoulement, or the return of a person to a country where that person is at risk of persecution.
Australia, by entering into an agreement whereby asylum seekers coming by boat to Australia are sent to PNG to be processed, is claiming that the PNG government can be trusted with the fair and lawful determination of the refugee claims of those asylum seekers. The PNG government’s blatant contempt for the rule of law exposes Australia’s offshore processing stance for what it truly is: a cynical and unprincipled attempt to hive off to poor countries with poor governance our obligations to process asylum seekers who come to our shores.
Australia has therefore put itself at risk of breaching the principle of non-refoulement, simply by transferring asylum seekers to PNG in the first place: by transferring asylum seekers to a country where it knows due process cannot be guaranteed, Australia takes on legal and moral responsibility for any harm that might befall those asylum seekers. This kind of “chain” refoulement has been recognised in international law: for example, in 2011 the European Court of Human Rights found that Belgium had breached the principle of non-refoulement by returning an Afghan asylum seeker to Greece, when there was clear evidence that Greece in fact had such poor procedures for assessing asylum claims that asylum seekers were at risk of being returned to persecution without a proper assessment of the merits of their protection claims.
Beyond “chain” refoulement, Australia places itself at risk of directly breaching the principle of non-refoulement by other means: the present government has blocked access to free legal support to all asylum seekers who arrive by boat. About 30,000 asylum seekers in Australia therefore have to negotiate the complex and stressful process of proving their asylum claims without legal aid. It is bad enough that a lack of proficiency in English, and ignorance about the legal framework for seeking asylum, already compromise many asylum seekers’ ability to participate in the process in any kind of meaningful way. The inability to get legal assistance makes a mockery of the much-cherished and yet rarely-observed Australian notion of everyone having a “fair go”. Denied legal advice, asylum seekers are at risk of presenting poorly-prepared cases, and of not knowing their rights. Genuine refugees may therefore end up having their asylum claims rejected, and of subsequently being returned to countries where they may be persecuted, harmed, and even killed.
Thanks to a partnership with the Refugee Advice and Casework Service (RACS), JRS is able to provide, out of Arrupe Place in Parramatta, free legal assistance to asylum seekers in their pursuit of protection in this country. What this partnership can accomplish, however, will always be limited by the resources available to us, and a large number of asylum seekers will still be left, in Sydney and elsewhere, without the ability to make proper applications for refugee status. To deter boat arrivals, the Australian government is willing to send asylum seekers back to places where they face persecution, physical harm, and worse. If, after years in politics, they still have functioning consciences, our political leaders should re-examine those consciences: that they haven’t actually fired the gun themselves does not necessarily mean they won’t have blood on their hands.
Aloysious Mowe SJ