An Attempt to Evade Liability: Australia's Role in Detention Center Abuse and the Refoulement of Sri Lankan Asylum Seekers in the Context of the Convention Against Torture

• Publication year: 2017
• Citation: Vol. 45 No. 3

AN ATTEMPT TO EVADE LIABILITY: AUSTRALIA'S ROLE IN DETENTION CENTER ABUSE AND THE REFOULEMENT OF SRI LANKAN ASYLUM SEEKERS IN THE CONTEXT OF THE CONVENTION AGAINST TORTURE

Carson Masters^*

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................670

II. THE PROBLEMS AND INSTANCES ....................................................671

A. Australia's Lack of a Bill of Rights or a Charter of Rights......671
B. The Road to Offshore Detention Centers.................................672
C. The Murder of Reza Barati.......................................................676
D. The Return of the Tamil Population to Sri Lanka....................678

III. APPLICABLE LAW AND JURISPRUDENCE ........................................682

A. What Exactly Constitutes "Other Cruel, Inhuman or Degrading Treatment or Punishment".....................................685
B. What Constitutes "substantial grounds" in Deciding Refoulement..............................................................................687

IV. AUSTRALIA VIOLATED THE CONVENTION AGAINST TORTURE ......692

A. The Murder of Reza Barati and the Subsequent Torture of Eyewitnesses Violated the Convention Against Torture...........692
B. Inadequate Screening and Return of Sri Lankan Aslum Seekers of the Tamil Ethnicity..................................................694

V. CONCLUSION ...................................................................................698

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I. INTRODUCTION

On February 17, 2014, several riots in the Manus Islands detention center left a twenty-three year old Iranian refugee, Reza Barati, dead.¹ Eyewitness reports suggest that Barati had been beaten, he had been hit with a nail embedded stick. A rock was also lifted and thrown down on his head,² and he eventually succumbed to these injuries. This horrific incident is not the only tragedy to emerge from Australia's policy of mandatory offshore detention in a camp on a small Pacific settlement miles from the mainland. On this day, not only Barati suffered; witnesses to his murder have since been forced into solitary confinement, threatened, and tortured.³ Additionally, thousands of refugees and asylum seekers have been returned to countries from which they initially fled. Members of the Tamil minority of Sri Lanka, specifically, have been returned to their island state to face ongoing persecution and human rights abuses.⁴

This Note analyzes whether Australia's asylum procedures concerning non-refoulement⁵ and the offshore detention facilities located on Nauru and the Manus Islands in Papua New Guinea violate the 1987 U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention or CAT). Part II of this Note will lay the foundation and background information concerning the specific incidents to be analyzed. Part III of this Note will focus on the relevant jurisprudence regarding the various interpretations of the CAT. This Part will specifically analyze two issues; first, what exactly constitutes "cruel, inhuman or degrading treatment or punishment"⁶ which is barred by the Convention, and second what is the role

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of the Convention in preventing non-refoulement.⁷ Part IV of this Note will apply the relevant jurisprudence in an effort to determine whether Australia violates the Convention either through the conditions of its offshore detention facilities or through the practice of returning Sri Lankan asylum seekers. As an aside, this Note acknowledges that several other treaties, mainly the United Nations Charter,⁸ the Universal Declaration of Human Rights,⁹ the 1951 Refugee Convention¹⁰ and the International Covenant on Civil and Political Rights,¹¹ are pertinent to this issue, but will not be analyzed in relation to the incidents discussed in this Note.

II. THE PROBLEMS AND INSTANCES

There are many factors that contribute to the ill treatment and refoulement of refugees. Further, numerous reported instances of human rights abuses exist. The most pertinent problem is Australia's lack of a Bill of Rights in its Constitution. The murder of Reza Berati, as well as the return of Sri Lankan asylum seekers to Sri Lanka are two of the most highly publicized depictions of the ill treatment of refugees.

A. Australia's Lack of a Bill of Rights or a Charter of Rights

Australia has no Bill of Rights to ensure basic liberties of Australian citizens and individuals within Australian territory.¹² One State in this federally organized country, the State of Victoria, has passed a Charter of Rights; however, only Victoria is bound by its terms.¹³ Australia's rules of construction concerning legislation are statutory in nature; "statutes are to be read consistently with the rules of international law, but not where the clear words of the statute are inconsistent with that implication."¹⁴ Australian legislation and statutes are automatically assumed to be in compliance with international law and Australia's international obligations. Despite this rule

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of construction, Australian courts have not readily adopted the principles of international law in their common law.¹⁵

B. The Road to Offshore Detention Centers

Australia first began the policy of mandatory offshore detention facilities with the Migration Amendment Act of 1992. The Act was implemented by the Keating government¹⁶ and called for the mandatory detention of all immigrants who tried to enter Australia without authorization.¹⁷ In 2001, the Howard government took matters further after the so-called "Tampa Affair"¹⁸ by implementing the "Pacific Solution."¹⁹ The Pacific Solution encompassed at least seven new bills pertaining to refugees, including the: Border Protections (Validation and Enforcement Powers) Act of 2001; Migration Amendment (Excision from Migration Zone) Act of 2001; Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act of 2001; Migration Legislation Amendment (Judicial Review) Act of 1998, passed in 2001; the Migration Legislation Amendment Act (No. 1) of 2001; Migration Legislation Amendment Act (No. 5) of 2001; and the Migration Legislation Amendment Act (No. 6) of 2001.²⁰ These new

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bills were a "calculated attempt to discourage and punish refugees who followed an indirect route from their country of origin to Australia and who had access to protection in their regions of origin prior to embarking for Australia."²¹

Perhaps the most important of these acts was the Migration Amendment (Excision From Migration Zone) Act, because it essentially established that "Christmas, Ashmore, Cartier, and Cocos (Keeling) Islands were excised from Australia's migration zone,"²² meaning that migrants who reach these designated areas were deemed outside of Australia's territory and thus owed no duty of care by Australia. Previously, these islands were deemed to be Australian territory. Therefore, migrants reaching these islands were afforded the same rights they would have received if they had arrived to the Australian mainland.²³ Migrants unlawfully entering these areas were unable to apply for visas to enter Australia except at the discretion of the Minister.²⁴ In 2008, the Pacific Solution formally ended²⁵ but resurfaced in 2012.²⁶

Before reenacting the Pacific Solution, the Australian government unsuccessfully attempted to procure the so-called 'Malaysian Solution'²⁷ in 2011. This arrangement purported to transfer 800 Australian irregular maritime arrivals (IMA) to Malaysia in exchange for the resettlement of 4,000 refugees from Malaysia.²⁸ This non-binding arrangement was successfully challenged as a violation of the Migration Act of 1958 in Plaintiff M70 v Minister for Immigration and Citizenship.²⁹ In its 2011 decision, the Australian High Court emphasized the fact that Malaysia was "not a party to the U.N. Convention relating to the Status of Refugees or to any of the core human rights treaties," as reasoning for striking down the agreement.³⁰ Essentially, the 800 Australian IMAs could have been subject to inhumane treatment and not afforded the rights they would have received

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in Australia because Australia is a signatory to several human rights treaties of which Malaysia is not.³¹

After the failure of the Malaysia Solution, the Migration Legislation Amendment (Regional Processing and Other Measures) Act of 2012 established a regional processing scheme once more.³² The purpose of this 2012 Act was to distance the Australian courts from refugee claims made by illegal maritime arrivals.³³ The Department of Immigration and Border Protection of the Australian government defines "illegal maritime arrivals" as any individual who arrived to Australia illegally by boat.³⁴ The Migration Amendment (Unauthorised Maritime Arrivals) Act of 2013 further denied any unauthorized maritime arrivals the "right to seek asylum or to apply for any form of visa in Australia."³⁵ Yet another statute, the Maritime Powers Act of 2013,³⁶ expanded the power of Australian authorities to intercept boats at sea and board, seize, search, and detain all individuals and vessels. Authorities are also permitted to "board vessels, and require the person in charge to stop, manoeuvre or adopt a specified course."³⁷

Following the return of the Pacific Solution, the Australian government began the process of entering into several 'Regional Resettlement Arrangements' and 'Memoranda of Understandings' with various states.³⁸ The regional resettlement agreements imply that irregular maritime arrivals arriving to Australia by boat will essentially never have the opportunity to settle in Australia because they will be immediately transferred to an offshore detention facility and will be unable to apply for a protection visa in Australia.³⁹ Australia's memoranda of understanding with Nauru, a sovereign state in the South Pacific, states that the government of Nauru will settle individuals who are...