On 1 February 2021, the Refugee Council of Australia (RCOA) made a submission to the United Nations Special Rapporteur on the Human Rights of Migrants. The submission was made in response to the Special Rapporteur’s call for input on pushback practices and their impact on the human rights of migrants and in order to inform his forthcoming report to the 47th session of the United Nations Human Rights Council.
We used this opportunity to provide an overview of Australia’s law and policy on boat turn-backs, existing restrictions in law and practice in relation to the right to seek asylum at international borders, and examples of pushbacks. In preparing this submission we analysed the information on public record about turnbacks, takebacks and assisted returns operations.
(note: the Australian Government distinguishes between ‘turnbacks’ and ‘take-backs’. ‘Turnbacks’ are defined as “the safe removal of vessels from Australian waters, with passengers and crew returned to their countries of departure” and ‘take-backs’ as a transfer (often at sea) of passengers from one sovereign authority to another “where Australia works with a country of departure in order to see the safe return of passengers and crew”.)
Below is a summary of our submission:
Australian law and policy on boat turn-backs:
Australia does not protect the right to seek asylum, in either legislation or policy. Section 197C of the Migration Act 1958 provides that, in removing a person from Australia, “it is irrelevant whether Australia has non-refoulement obligations”.
Likewise, in 2014, the Government legislated for new powers to detain people at sea (both within Australian waters and on the high seas) and to transfer them to any country or a vessel of another country – even if Australia does not have that country’s consent to do so. These powers can be exercised without consideration of Australia’s non-refoulement obligations, the law of the sea or any other international obligations.
Existing restrictions in law and practice in relation to the right to claim and seek asylum at international borders:
On 18 September 2013, 11 days after the Liberal-National Coalition won back power in Australia’s federal election, Prime Minister Tony Abbott implemented Operation Sovereign Borders, a “military-led response to combat people smuggling and to protect [Australia’s] borders”. Operation Sovereign Borders involved a staunch commitment that all asylum seekers arriving by boat would be turned back to their country of departure. From September 2013 until January 2020, 38 boats, carrying at least 873 people, were intercepted and returned to their country of departure, including to Sri Lanka, Vietnam and Indonesia.
During Operation Sovereign Borders, interdictions and turn-backs occurred within Australian territorial waters, on the high seas, and also within the territorial seas of Indonesia, in breach of international law.
The Australian Government also conducts an entry-screening process for air arrivals at Australian airports. This practice assesses whether people arriving in Australia may wish to seek asylum, and either summarily returns them before they are able to submit an asylum application, or detains them indefinitely until they are assessed as refugees. The Australian Government has admitted that it does not keep adequate records of the number of potential asylum seekers returned from Australian airports and, as a result, it is difficult to know exactly how many people have been returned to harm.
Instances of boat pushbacks:
Since 2013, 873 people seeking asylum on 38 vessels have been forcibly returned to their country of departure, either with a very rudimentary assessment process, or no refugee status assessment at all. This number includes 124 children. Each of these returns are in clear violation of international law, yet remain a key policy of the Australian Government.
Our submission goes into further details about the conduct of pushback operations, examples of people being returned and then recognised as in need of protection by other countries, and case studies of people returned by air. It also includes an appendix which lists all of the pushback operations since September 2013 and publicly available details on each operation, including whether the Government reported on them at the time.
Image credit: AAP/Scott Fisher