At first there is confusion. Federal Circuit Court judge Caroline Kirton takes only two minutes to uphold a decision of the Immigration Assessment Authority (IAA) not to grant a Sri Lankan Tamil family safe haven in Australia.
Priya, Nades and their two infant daughters, born in Australia, are not here today. They are under guard at the Broadmeadows detention centre, where they have been held since being torn from their home in Biloela, central Queensland, in early March.
Their lawyer sits alone facing the elevated bench from which Kirton delivers her judgement. Everyone bows as she departs. Now there is a moment of silent disarray. What just happened? Did that just happen? For a decision of such gravity, the delivery seems too perfunctory. Did we miss something?
Outside the hearing room, a gaggle of reporters is searching for clarity.
“Can you help us out with what just happened?”, one asks.
The lawyer appears as shell shocked as the rest of us. An enormous responsibility weighs. Her words drift. We lean in. Clutching the full 58-page judgement, she takes a breath, lifts her head and stares through the journos in front of her. There is no escaping the black and white of it: the legal case is lost. The family can be deported.
Riffling through the argumentation, she reads small sections aloud, shaking her head, remonstrating and appealing in disbelief to those gathered, trying to process the legal logic that justifies such an inhuman conclusion.
Adding to the injury, Kirton has ordered Priya to pay costs of more than $7,300 to the minister of home affairs, Peter Dutton – one of the most ghastly species of moral culpability ever to have entered a federal cabinet.
All Priya is asking, after five years of residence and the birth of two daughters, is to join the rest of us in calling this continent home. We are mostly the descendants of immigrants or convicts who, like this family, were dealt a shocking whip by foreign authorities.
But it is too much to ask.
More than one hundred thousand petitioners, a central Queensland town’s exhortations, a remarkable public campaign, legal appeals and countless representations – to federal and state MPs, to minister Dutton and to prime minister Malcolm Turnbull – all appear to have come to naught here on the sixth floor of the William Street complex in Melbourne’s legal precinct.
The government is determined to deport two Australian-born infants to a country they have never been; to return a father with a well-founded fear of persecution to the place he fled more than half a decade ago because of death threats; to return to Sri Lanka a mother who has not set foot on the island since 2001.
The security forces there murdered her husband-to-be – burning him alive with five other men – harassed her family and sexually assaulted her mother because of the family’s association with the Tamil Tigers.
To underline the minister’s determination, his department issued a deportation notice the following day, before Priya had a chance to appeal Kirton’s decision.
This is only the latest in a long list of travesties.
When Priya and Nades’ Biloela home was raided by scores of police and Border Force officers, they were given just 10 minutes to pack their belongings before being flown to Melbourne and placed under guard.
A distressed neighbour, who did not wish to be identified, related that she was prevented from seeing the family before their removal. When she checked on their home after the police left, baby’s milk was still warming in the kitchen; most of the family’s possessions remained.
Before Priya and Nades could secure representation, they signed “voluntary” deportation documents under duress. They were told that if they didn’t, the family would be separated and sent to Sri Lanka anyway.
Soon enough, they were bundled into vans, taken to the airport and flown to Perth, where they were put on board an aircraft full of other Tamils being deported. A last minute injunction pulled them from the plane, and they were returned to Melbourne.
They have remained in detention for more than three months.
A broken system
Priya, Nades and their daughters are not alone. Ninety-two percent of Tamils taking their case to the IAA have their application for asylum rejected. This is not because they lack merit.
From the moment Sri Lanka gained independence from British colonial rule in 1948, Tamils in the country faced increasing marginalisation. Successive governments, dominated by the majority Sinhalese-Buddhist ethnic majority, passed discriminatory laws targeting higher education, government hiring and language and voting rights.
Colonisation schemes changed the demographic profile of Tamil majority areas. Pogroms claimed thousands of lives.
A brutal civil war, for Tamils a defensive one, raged on and off for three decades, culminating in a genocidal offensive in 2008-09. Tens of thousands were murdered or disappeared. In the decade since, Tamil areas have been under heavy military occupation.
The enduring culture of impunity and reprisal within the Sri Lankan security forces has been well documented by Amnesty International, the United Nations, the International Crisis Group and Human Rights Watch, among others.
Yet Australian governments have put their own political and geostrategic interests above the rights of Tamils seeking asylum. More than 4,000 fled here by boat between 2009 and 2013. In response to pleas for sanctuary, the Labor government in 2012 introduced “enhanced screening” for Sri Lankan arrivals. Bob Carr, then foreign affairs minister, said in 2013 that he saw no evidence that “Tamils live in fear and are fleeing their country”.
Under the Liberals, the situation got worse, boat arrivals being intercepted at sea and passengers handed over to the Sri Lankan authorities. More than 1,000 have been returned before even setting foot in Australia, according to researchers Judith Betts and Claire Higgins.
The government’s policies are not born of ignorance of the situation in Sri Lanka; they are callous by design.
Four years ago, the Sri Lankan High Commission thanked Australia for the ‘‘bold decision of not co-sponsoring this year’s [United Nations] human rights resolution’’.
The blocked resolution related to clear evidence of war crimes – torture, kidnapping, the military slaughter of thousands of civilians corralled onto a beach in Mullaitivu district in the north-east of the country in 2009, and thousands of disappearances of Tamil activists and their friends and family.
The Australian government consummated the relationship on a simple calculation: in return for Sri Lanka stopping asylum seekers from leaving the island, and for taking back those returned, Australia would defend it against charges of human rights abuses. As Amanda Hodge, a Murdoch press south-east Asia correspondent, noted in 2015:
“Sri Lanka’s new prime minister, Ranil Wickremesinghe, claims the Australian government’s silence on alleged human rights abuses was the price it paid to secure co-operation from the former Rajapaksa government on stopping asylum-seeker boats.”
Former PM Tony Abbott as much as confirmed this in Quadrant online the following year:
“I’m sure that the Sri Lankan president was pleased that Australia didn’t join the human rights lobby against the tough but probably unavoidable actions taken to end one of the world’s most vicious civil wars. Certainly, both countries became even stronger partners in the Abbott government’s most urgent initial task: to end the people-smuggling trade.”
The Australian and Sri Lankan governments claim that the country has moved on – that there are no longer valid reasons for most Tamils to claim asylum elsewhere.
But the idea that genocide can be put to bed is both cruel and laughable.
There was no “settlement” between the Tamil Tigers and the Sri Lankan government – just a rout that wiped out the leadership, the leading cadres and tens of thousands of civilians. The military occupation since has been a consolidation of the Sri Lankan state’s gains.
A chauvinistic fervour continues to mark sections of the Sinhalese security forces. Mob violence continues to blight the island. Torture, disappearance, rape and harassment continue to be weapons in an ongoing war against Tamil resistance to oppression; the Tamils still want self-determination.
The Australian government is in partnership with the oppressor nation. What this has meant for Tamils seeking asylum here is clear. Were the Australian government to recognise their legitimate claims of persecution, it would undermine the deal with Sri Lanka. It would be a diplomatic embarrassment and a blow to the geopolitical alliance between the two states.
So, faced with human rights abuses, Australia has cracked down on Tamil asylum applications.
Kirton’s judgement should be read in this context. It seems an exercise in proceduralism; a long argument upholding the IAA’s process determining that Priya and Nades have no case, no genuine cause for concern if returned to the place from which they fled.
But the IAA’s conclusion strongly reflects the political balance of forces, rather than the humanitarian merits of Priya’s and Nades’ testimonies. Its judgements are, at best, ignorant of how Sinhalese-Buddhist supremacy is being imposed in Tamil Eelam (the majority Tamil areas in the north and east of Sri Lanka).
For example, a key factor in the judgement relates to Nades returning to the country three times between 2004 and 2010 and being admitted through security at Colombo airport. Nades subsequently received death threats from members of the Criminal Investigations Department, yet this isn’t considered particularly important.
But this is precisely the pattern of harassment befalling many returned Tamils: only in the weeks and months after their return are they targeted.
Another recently deported Tamil man, Santharuban, is a case in point. Since the Australian government sent him back – again, ruling that he had no genuine asylum claim – he and his family have been threatened repeatedly. He is currently in hiding, afraid to return to his home village.
Australia’s immigration laws are stacked against Tamil asylum seekers. That doesn’t mean that legal avenues will never lead to a just outcome; they probably should be pursued when a person’s chances of success are better than remote.
Priya and the children are appealing to the Federal Court, after Asylum Seeker Resource Centre lawyers helped the family and its supporters to win a temporary injunction against their deportation. At the very least, this is a welcome reprieve.
Yet, if the decisions handed down reflect political realities, only a political response will do: we have to focus on shifting government policy.
I remember camping near Port Augusta, South Australia, in 2003 and marching on the Baxter detention centre with hundreds of others, chanting “Tear down the fences, free the refugees!”. We believed that we could have done so, if only we had several thousand more with us. Woomera previously had been breached, those inside pulling down the cyclone fencing and running for freedom.
But since then, the situation for asylum seekers has deteriorated in Australia and internationally. For all our political campaigning, states and governments, with a few exceptions, have only turned the screws.
Our political defeats have led to an increasing focus among activists on helping individual asylum seekers legally and materially as their situations became more precarious. Often, this has been deemed more urgent and practical than political campaigning.
There is no doubt the practical work of refugee supporters has made a difference to countless lives. Increasingly, however, the official channels are becoming roadblocked and the scale of the material needs unmanageable. Thousands of people are being stripped of government allowances and denied services, and thousands are at risk of deportation. Targeted advocacy for those most at risk faces declining yields.
A political shift might seem unrealistic. More than 100,000 people signed a petition calling on Peter Dutton to let Priya, Nades and their daughters stay. Yet on a Sunday afternoon in Melbourne, after the latest deportation order was issued, we could mobilise only dozens of supporters.
However, if all the people and organisations that support refugee rights put a renewed focus on mobilising to oppose the current set-up, perhaps we could turn things around. We are only a minority. But even if we are only 20 percent of the population (and there are indications we are more than that, if opinion polls are accurate), we are 5 million strong.
It’s not too far-fetched to think that, with a dedicated effort, the tide might be turned.
If the government again attempts to deport Priya and Nades, their only hope will be people power mobilised at the detention centre and at the airport. If enough people are prepared to act, the removal can be disrupted. That could prove more decisive than the courts. And it might inspire many more to get involved in the fight for refugee rights, rather than feel helpless in the face of this government’s inhumanity.