Return of Vietnamese Asylum Seekers by Australian Navy Risks Breach of International Law

Catholic Communications, Sydney Archdiocese,
22 Apr 2015

Turning boats around and processing asylum seekers on the high seas and provided with no lawyers is a breach of internantional law

Jesuit Refugee Service Australia (JRS) has expressed deep concern about the recent interception of 46 Vietnamese asylum seekers who had been found in waters north by the Australian navy and their forced return to the city of Vung Tau, south of Ho Chi Minh City.

The asylum seekers were intercepted by the HMAS Choules and returned to Vietnam despite Australia's responsibilities under International law not to return an individual to persecution or risk of imprisonment or other serious harm.

"By intercepting asylum seekers at sea and denying them access to a proper refugee status determination process (RSD), Australia is at risk of breaching its international obligations, and more importantly, returning people to a country where they may well be at risk of serious harm," says Oliver White, Head of Policy and Advocacy for JRS.

The Federal Government recently passed controversial legislation that empowers the Minister of Immigration to detain and transfer people on the high seas even when this means the Minister is in breach of Australia's international legal obligations.

Under international law to which Australia is a signatory, one of the key principles is that people escaping from persecution, conflict or torture and seeking safety and asylum in another country have the right to non-refoulement, which is the right "not to be returned to persecution."

HMAS Choules intercepted Vietnamese asylum seekers and in breach of international law returned them to Vietnam where they may face serious harm

"It is important to note that domestic legislation such as that passed by the Australian Parliament does not overrule a nation's obligations under international law," Oliver White says.

He also points out that the Office of the United Nations High Commissioner for Refugees (UNHCR), the UN agency mandated to protect refugees worldwide , recently reaffirmed that the principle of non-refoulement, stating that this principle  "applies wherever and however a State exercises its jurisdiction" and "applies when intercepting a vessel outside its territorial waters."

JRS is troubled that the 46 asylum seekers had their protection claims assessed under the Department of Immigration's "enhanced screening process", which Oliver White describes as an  attenuated procedure conducted on board Customs and Navy vessels at sea which by-passes rigorous refugee assessment standards in favor of a swift resolution. 

"This has already led to hundreds of Sri Lankan asylum seekers being denied access to a fair and comprehensive hearing of their claims and the forcible return of approximately 1,000 asylum seekers to Sri Lanka where some have allegedly faced arrest, detention, interrogation and torture," he says.

Bishops say human rights and dignity of asylum seekers are being seriously violated

"Without a proper assessment, the Government cannot determine whether it is safe to return asylum seekers to their country of origin. The swift and clandestine assessment of asylum seekers in transit and en route to Australia represents an unprecedented departure from Australia's already-punitive asylum protocol," he says and insists that "asylum seekers must be given the opportunity to voice their protection claims, be granted access to legal assistance, and have an independent review of the decision."

Immigration Minister Peter Dutton has said he will not discuss "operational matters" including the recent interception but indicated a "bilateral" deal in which Vietnam is believed to have accepted the return of the asylum seekers week includes the government not talking about the "swap".

Minister Dutton is reported saying; "I'm not in a position to comment in relation to water operational matters … we've been able to on a number of occasions, on a bilateral basis, deal with countries to get a good outcome [and] to make sure we meet our international obligations in screening people and we don't send people back to a country where we think they are going to be persecuted."

Minister for Immigration Peter Dutton may have breached international law

However the U.S. Department of State Country Report on Human Rights Practices for 2013 found that Vietnam is an "authoritarian state ruled by a single party" where "security forces committed human rights abuses."

The Report also noted that the Vietnamese Government placed severe restrictions on citizens' political rights and civil liberties, and highlighted the issue of corruption in Vietnam's judicial system as well as the nation's police.

Human Rights Watch reports that there are an estimated 150-200 political prisoners held in Vietnam.

"JRS is also deeply concerned over the safety of ethnic groups fleeing Vietnam, such as the Montagnards and Hmong, who are subjected to arrest, torture, detention, and extra-judicial killing," Oliver White says and pointed to credible reports coming out of Vietnam of the ongoing destruction of churches and forced renunciation of faith.

Asylum seekers who arrive by boat face years in limbo and in off shore detention

Whilst JRS acknowledges and supports the interest states such as Australia have in the eradication of people smuggling, it strongly objects to any approach that denies asylum seekers who have engaged people smugglers in their desperate search for safety, from accessing a country's refugee determination process.

"Refugees may resort to people smugglers out of desperation and because they have no other means of obtaining a visa to enter the country legally," Oliver White says. "And until alternative pathways to safety are introduced, asylum seekers will be forced to solicit the services of smugglers so they can reach safety."