AUSTRALIA, INDONESIA AND THE PRINCIPLE OF NON-REFOULEMENT
Nik Tan
7 November 2014
Pushbacks to Indonesia on the high seas, detention on Nauru and Manus Island, resettlement in Cambodia, and the return of Hazaras to Afghanistan…[1] These policies trigger the question: is Australia returning people to danger?
One pillar of Australia’s approach to asylum seekers is that people arriving by boat will not be offered protection in this country. As a result, Australia is returning or resettling in other countries, a large number of asylum seekers and refugees who arrive by boat.
Indonesia is not a signatory to the Refugee Convention. However, since October 2013 Operation Sovereign Borders has turned back at least 12 boats to our closest neighbour.[2]
While asylum seekers and refugees returned to Indonesia do not face the threat of persecution, what if Indonesia in turn returns them to danger? Under international law Australia also shares responsibility for their fate.
As a signatory to the 1951 Refugee Convention Australia has an obligation not to return a person to a place where they face a threat to their life or freedom. Under the Convention, the principle of non-refoulement prohibits the forced return 'in any manner whatsoever' of refugees to places where their 'life or freedom' would be threatened on account of their 'race, religion, nationality, membership of a particular social or political opinion'.
Further, as signatories to the Convention Against Torture and the International Covenant on Civil and Political Rights, neither Australia nor Indonesia may return people to face torture, cruel, inhuman and degrading treatment and punishment.
And crucially, the decisions of national and regional human rights courts indicate that countries cannot remove a refugee from one county to a third country, which subsequently will send that refugee onward to the place of feared persecution.
It is this process, known as chain refoulement, which is at risk through Australia’s policy of returning boats to Indonesia.
So does Indonesia return people to persecution or torture? Several examples illustrate that this could be happening, albeit on a small scale.[3]
In July 2008, news media reported that two Iranians who ‘fled to pursue living in a free country’ were to be deported.[4] The story stated that this would ‘not be the first time Indonesia has deported Iranian nationals’. In the same year, Amnesty International reported that a Yemeni national living in Indonesia was ‘tortured on arrival in Jordan after he had been expelled from Indonesia’ as part of a rendition arrangement in the United States-led War on Terror.[5]
In 2009, local media called on the Indonesian government not to return 55 Sri Lankan Tamils who had arrived in Aceh by boat.[6] Whether the group were ultimately returned is unknown.
In 2012, reports emerged of the return of 13 asylum seekers to Iran.[7] Deported in February, the group were part of a failed attempt to depart Indonesia by boat bound for Australia. An Indonesian news article further notes that ‘the wide gap between Indonesia’s international legal commitments and their implementation in the field leaves asylum seekers and refugees at risk’.[8]
These examples suggest that while Indonesia does not regularly return people to persecution or torture, it cannot be ruled out and may have already occurred numerous times.[9] Where refoulement does occur, it is not as a result of deliberate Indonesian policy, but rather where people with protection needs are returned without acknowledgement of their refugee claims. However, given that non-refoulement is the cornerstone of international refugee law and a fundamental principle of international human rights law, even the possibility of its violation is a cause for concern.
Amid the increasing return of asylum seekers to countries of origin and transit, Australia cannot ignore its obligation to protect people from return to persecution or torture.
Nik Tan is a lawyer and former officer of the Department of Foreign Affairs and Trade. He is an editor of Inside Indonesia and Asylum Insight.
[1] Abdul Karim Hekmat, ‘Taliban tortures Abbott government deportee’, The Saturday Paper, 4 October 2014; Ben Doherty, ‘Australia forcibly returns second Afghan Hazara, despite fears over safety’, The Guardian, 28 October 2014.
[2] Emma Griffiths, ‘Immigration Minister Scott Morrison confirms 12 asylum seeker boats turned back since start of Operation Sovereign Borders’, Australian Broadcasting Corporation, 18 September 2014
[3] Amnesty International, Indonesia: Briefing to the UN Committee Against Torture, 15 April 2008 18
[4] S. Taylor & B. Rafferty-Brown, 'Difficult Journeys: Accessing Refugee Protection in Indonesia' (2010) 36(3) Monash University Law Review 138-161 145; ‘Indonesia Combats Illegal Immigration’, Epoch Times, 21 July 2008
[5] Amnesty International, Indonesia: Briefing to the UN Committee Against Torture, 15 April 2008 18
[6] Nurdin Hasan, ‘Govt Urged Not to Repatriate Refugees’, Jakarta Globe, 19 June 2009; Hotli Simanjuntak, ‘Aceh inspires Sri Lankan peace mission’, The Jakarta Post, 2 July 2009
[7] Aditya Muharam, ‘Respect the Principle of Non-Refoulement’, Jakarta Globe, 21 February 2012; Dicky Christanto, ‘13 Iranians deported for illegal exit attempt’, The Jakarta Post, 9 February 2012; Peter Alford, ‘Iranians step through open door’, The Australian, 11 February 2012
[8] Aditya Muharam. ‘Respect the Principle of Non-Refoulement’, Jakarta Globe, 21 February 2012
[9] S. Taylor & B. Rafferty-Brown, 'Difficult Journeys: Accessing Refugee Protection in Indonesia' (2010) 36(3) Monash University Law Review 138-161 145; Savitri Taylor, ‘Asylum seekers in Indonesia: why do they get on boats?’, The Conversation, 19 July 2012