Australia prepares to return Afghan detainees

May 20, 2005



Australia is preparing to send 19 Afghan nationals back to their country of origin under a new agreement with Afghanistan. The Memorandum of Understanding (MOU) offers AU$2,000 per individual and up to AU$10,000 per family, along with travel and other accommodations, for the detainees to voluntarily return. Failing that, those Afghans found not to be refugees are liable to be deported.

Children overboard affair
The detainees were rescued in October 2001 by the Norwegian freighter MV Tampa from an overcrowded, sinking boat which was given the name Suspected Illegal Entry Vessel 4 (SIEV-4). Some senior cabinet members, including Prime Minister John Howard, claimed that the vessel's occupants deliberately tossed some of their children overboard to force their rescue.

Those claims appear to have solidified public support for their re-election on November 10, 2001 for being strong on the issue of border protection. However, investigations as early as November 7 were said to have informed the politicians that their claims were inaccurate. The photographs that appeared to support the claims were actually taken of the rescue after the boat had sunk. The claims were not withdrawn before the election, and the resulting controversy and subsequent investigations are known as the Children overboard affair.

Asylum seekers detained in Nauru
The boat's passengers were seeking political asylum in Australia from the conditions in Afghanistan as of 2001. Many of them were taken to mandatory detention on the island of Nauru in the Pacific, due to an Australian policy known as the Pacific solution.

In 2002, the Afghan government asked Australian authorities not to force deportation of Afghan refugees. Foreign Minister Abdulla Abdulla said that the changing conditions in Afghanistan at that time were not stable enough for the refugees to return.

Since then, the asylum-seekers have been in detention in Nauru while their situation has been investigated. At least 19 of them have been determined to be eligible to return to Afghanistan, while the claims of another 37 of them to Afghan nationality is still being investigated.

Along with the MOU signed May 17, Australia's Minister for Immigration Senator Vanstone announced that the Australian Government plans to provide US$4 million for a housing project for any returning Afghans. This new funding is "separate from the $110 million of development assistance provided by Australia since September 2001," according to Ms Vanstone's media release.

Questions surrounding DIMIA detention system
Jack Smit of Project SafeCom has complained repeatedly about the detaining of the Afghans and made various charges surrounding their detention and return. Most recently, Mr Smit is questioning the Department of Immigration and Multicultural and Indigenous Affairs  (DIMIA) decision-making process. One of its Refugee Review Tribunal members is Mirko Bagaric, of Deakin University.

Mr Bagaric is said to have written an academic paper defending the use of torture, to be published in the The University of San Francisco Law Review in two weeks. Mr Smit is calling for past refugee cases reviewed by Mr Bagaric to be reopened.

"Refugee advocates right around Australia have expressed serious concerns about the views of Mr Mirko Bagaric, and demand that all RRT review cases of asylum claimants refused by Mr Bagaric be re-opened and re-assessed," said Mr Smit in a press release, which explained that his refugee advocacy office had been "inundated with phone calls from concerned advocates and supporters."

In the past, refugee advocates have criticised many aspects of the review process. One recently reported case is the accidental deportation of one Australian, Vivian Solon, to the Philippines. Another Australian, Cornelia Rau, was interned in the DIMIA detention system for nearly a year.

Most such cases are unlikely to be seen by the public for some time, if ever. According to lawyer David Manne, a director of the Refugee and Immigration Legal Centre, applicants feel unable to take legal action against the government until they have permanent Australian residency. 

"There could well be a time bomb ticking here [for DIMIA], because there’s no doubt that there are quite a number of people who have suffered harm in relation to the system. The question is whether that will give rise to legal compensation," he said, in a recent interview with the ABC 'Law Report'.

DIMIA defends itself in previous statements given to 'The Law Report', saying it "takes seriously its non-refoulement obligations under international human rights treaties to which it is a party, and does not return people to a country if those obligations would be breached."

It claims to use "comprehensive and current country information", in a "robust" process that is "comprehensive, fair and transparent to any person who is entitled to obtain the personal details of applicants."

However, DIMIA concedes, "The scope for monitoring the circumstances of failed asylum seekers to depart Australia is limited and it is not widespread international practice for asylum countries to do this." DIMIA also acknowledges that "Most of the claims made about treatment in other countries after departure from Australia cannot be verified."

Ms Vanstone expressed confidence in the integrity of the Palmer Inquiry, which is looking into several recent DIMIA issues including the Cornelia Rau case, and is looking forward to its outcome.