Monday 04th August 2014
By Jared Owens
IMMIGRATION Minister Scott Morrison is seeking a High Court ruling that could reshape Australia’s interpretation of the Refugee Convention by demanding that asylum-seekers change their behaviour, and even their jobs, to avoid persecution.
The minister’s legal strategy could clear the way for more asylum-seekers to be deported on the grounds that they can control some of the circumstances that lead them to flee their countries.
The case centres on a 49-year-old Hazara truck driver whom the Immigration Minister argues could safely return to Afghanistan if he resumed his previous occupation as a jeweller. The asylum-seeker — identified in court as SZSCA — claims he would continue as a truck-driver regardless of the risk because he had no other way to support his family.
Truck drivers on Afghan highways are often stopped at Taliban checkpoints, where they are targeted for transporting construction materials linked to Western-backed reconstruction projects.
Mr Morrison is pursuing the legal offensive amid an unapologetic defence of his decision to transfer 157 asylum-seekers to Nauru on Friday night, after they rejected a “very good” offer to meet Indian consular officials and possibly return to India.
The asylum-seekers’ lawyers, who learned of the government’s decision in The Weekend Australian, said the secretive move prevented an 11th-hour legal application to keep their clients, already subject of a High Court challenge, at the Curtin detention centre in Western Australia.
Mr Morrison yesterday said he was “very troubled” by evidence of detained children harming themselves, but insisted the transfer of the boat’s 50 child migrants to Nauru was necessary to prevent his officers having “to scoop children out of the water as corpses”.
The boatload of 157 people, mainly Tamils who had fled Sri Lanka to India, now face months on Nauru while their asylum claims are processed and the prospect of being sent back to Sri Lanka if they fail to qualify as refugees.
Mr Morrison declined to contest reports to the Human Rights Commission of children drinking poisonous detergents, banging their heads against walls and attempting to hang themselves by their headscarves.
“Offshore processing is a universal policy, and when you create exceptions to that … then you create an incentive for children to get on boats,” Mr Morrison told ABC’s Insiders.
“I hope the days now are long gone where children are dying at sea and my officials and officers who work for Customs and the Navy officers have to scoop children out of the water as corpses.
“I don’t want to see children in detention … I have two children of my own and I don’t want to see children going into that environment, but the policy is necessary, together with all the other measures, to ensure that we don’t have that outcome.”
Mr Morrison said his secretary, Martin Bowles, had written to the commission to provide an alternative account of a meeting with psychiatrist Peter Young, who claims he was directed to exclude damaging mental health statistics from a government report.
Mr Morrison did not repeat yesterday his suggestion on Friday night that asylum-seekers had “squandered” the chance to return to India apparently “on the advice of advocates and lawyers who spoke to the leaders of the group”.
Hugh de Kretser, from the legal team that spoke to 10 of the 157 detainees by phone, said it was “completely wrong” to say asylum-seekers were advised to reject meetings with Indian officials.
Mr de Kretser also criticised the government for sharing the names and personal details of the asylum-seekers with Indian authorities before assessing their refugee claims “because if they’re seeking protection against authorities in India, it puts them and any of their relatives back there at risk of harm”.
The ongoing High Court case relating to the 157 asylum-seekers was last night expected to go ahead as it could test the validity of the government’s policy of intercepting asylum-seeker vessels at sea and detaining the passengers.
The SZSCA appeal has been accepted for hearing by the High Court and could clear the way for more asylum-seekers to be deported on the expectation they would change their behaviour.
Critics from both Labor and the Coalition have accused courts and tribunals of expanding the scope of the Refugee Convention.
Mr Morrison’s spokeswoman told The Australian: “This appeal raises an important issue of principle as to the construction and application of the Refugee Convention. Given the matter is currently before the court, we are unable to comment further.”
The judges held that the government must consider what “would” happen if the refugee were returned, not what “could” happen if he followed Mr Morrison’s advice.
Dissenting Federal Court judge Geoffrey Flick backed Mr Morrison over SZSCA, writing in December: “It is no part of the protection afforded by that Convention to confer a licence or a protection upon persons to engage in forms of conduct divorced from the manner in which, for example, a person may practice or espouse his religious or political beliefs or opinions. Many young people now wear what was once regarded as a Roman Catholic cross as a mere fashion accessory without any intention to convey a particular religious belief. The Refugees Convention, however, does not seek to protect the freedom of such persons to dress in that manner.”
