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The asylum controversy

Interview: Gabriel DomínguezJuly 11, 2014

Canberra has been criticized over the return of asylum seekers to Sri Lanka after a brief screening at sea. Australian Human Rights Commission Chief Gillian Triggs says the practice may be in breach of international law.

Suspected asylum seekers arrive at Christmas Island, after receiving assistance by Australian Navy, on October 13, 2012 on Christmas Island.
Image: Getty Images

The Australian government has rejected accusations of mistreatment by Sri Lankan asylum seekers returned to the island nation. The reaction from Canberra comes a day after 41 Sri Lankans were intercepted at sea and sent home by Australia, with some of them complaining about ill treatment by Australian Customs officials at sea. During a visit to Colombo on July 9, Immigration Minister Scott Morrison said the allegations were "offensive," but added his government's move sent a clear message to those thinking of following in their footsteps.

The adults among the group of 41 were charged in their homeland with attempting to leave the country illegally, a crime punishable by up to two years in jail. Australia has been facing growing international scrutiny, especially given that a second boat carrying 153 Sri Lankan asylum seekers remains in legal limbo as the Australian High Court considers whether their interception was legal.

In a DW interview, Australian Human Rights Commission President, Professor Gillian Triggs, says she doesn't believe the government's handling on asylum seekers' claims on the high seas meets the standards of the UNHCR, or in fact, of any other country that has ever assessed asylum seekers' claims.

DW: The Australian government is accused of having returned asylum seekers after having assessed and rejected their claims at high sea – in a video conference. How do you judge this from a legal point of view?

Gillian Triggs: From a legal point of view, the core position in international law and under the UN Refugee Convention that asylum seekers have a right to seek and enjoy asylum and to have their claims assessed in a fair way, and, if rejected, have the opportunity to an impartial tribunal.

Professor Gillian Triggs, President Australian Human Rights Commission; Coypright: Australian Human Rights Commission
Triggs: "We cannot see how an assessment done via video-link could meet any standard of fairness"Image: Coypright: Australian Human Rights Commission

However, what appears to have occurred in the recent case is that Sri Lankans seeking asylum in Australia have been given three to four questions via teleconference, and all of them have been rejected with the exception of one. They were then returned to Sri Lanka without any possibility of an impartial tribunal reviewing the negative assessment. As a broad legal position, this approach almost cannot meet the requirements of a fair opportunity to present evidence in support of the persons' claims for refugee status.

At the moment, the concern is that these Sri Lankan asylum seekers – mainly Sinhalese people – have been at sea for a while, and are obviously not going to be in their best condition. They have been picked up and within a very short space of time subjected to this fairly rapid assessment process. I don't think that meets the standards of the UNHCR or, in fact, the standards of any other country that has ever assessed asylum seekers' claims.

Is it possible at all to seriously assess the asylum seekers' claims if you only rely on talks via video conferences?

We cannot see how an assessment done via video-link could meet any standard of fairness, as there is no personal relationship with the person asking the questions and no real opportunity for the asylum seeker to explain the documentation or legal circumstances in four quick questions.

What would a fair treatment of these asylum seekers look like?

It depends. Most countries grant asylum seekers a few days to recover from their journey, make sure the health checks are done, and give them a chance to put their documentation together, and present it to the case officer examining the matter. It might be required that the asylum seekers be brought to a land base where they get the access to the internet. These are the sorts of things that normally take place over a several-weeks process.

Why has the Australian government decide to follow this asylum policy approach?

This is a policy matter. The question of asylum seekers has become a highly political matter in Australia. We have had a new government for the past nine months, and it is determined to demonstrate that it can stop the boats and the drowning of people at sea. We have had at least 1,200 people die due to ill-equipped boats and the public has been horrified at this.

Moreover, we had a huge spike in asylum seekers' claims last year and the government made an election promise that it would stop the boats, stop the danger and stop deaths. To a significant degree, that has been achieved. From our point of view, we are concerned that at minimum, the legal standards be met, and those who seek asylum in Australia have the opportunity to present their claims to the government. We don't support stopping the boats in a way that prevents the asylum seekers for put forward their claims.

Some of the refugees are now in Sri Lanka, threatened with imprisonment of up to two years for "illegally leaving the country." Isn't this an indication that these people fear persecution in their home country?

We are receiving very worrying reports from the US State Department, from the UNHCR, and from countries in Europe. The penalty for leaving your country in a way that the government doesn't believe is appropriate, and a two-year prison sentence if found guilty, is a violation of human rights. We all have a right to leave our country if we choose to do so. The prosecution of those who have been returned to Sri Lanka does add to the evidence that Sri Lanka is a place where persecution is taking place. Particularly, it is proof of the persecution of the Tamils and Sinhalese who leave the country without government approval.

Australia has been harshly criticized by Human Rights Organizations for maintaining its refugee camps abroad, namely on Nauru and Papua New Guinea. Is the Australian government acting, according to international law?

There is no principle of international law that prevents offshore processing, so if we have that within the region, with the involvement of neighboring countries such as Indonesia or Malaysia, then it would be possible to meet the international standard.

Suspected asylum seekers arrive at to Flying Fish Cove, Christmas Island, after being intercepted and escorted in by the Australian Navy, on August 3, 2013 near Christmas Island, In
Canberra's approach almost cannot meet the requirements of a fair opportunity to present evidence in support of the persons' claims for refugee status, says TriggsImage: Scott Fisher/Getty Images

But the great difficulty with Nauru and Papua New Guinea is that these are sovereign nations where they have very significant developmental problems of their own, and where the rule of law appears not to be satisfactory. It is practically out of capacity to have these interviews dealt with on these islands. Asylum seekers are not being adequately assessed in these places, and there is no proper legal system for their claims to be addressed. We are concerned that the conditions on these islands are not appropriate.

Emeritus Professor Gillian Triggs is the President of the Australian Human Rights Commission.