Australian refugee deportation
- 1 hour ago
- 7 min read
By Christina Cushen
Introduction
Australia’s treatment of refugees and asylum seekers in offshore and mainland detention centres has been long criticised by human rights advocates and the United Nations. The Australian Government continues to violate its international obligations by arbitrarily detaining people and breaching the non-refoulment policy by sending asylum seekers and refugees back to the country where they escaped. Through case studies in which the UN has condemned Australia's treatment of refugees and asylum seekers, this article demonstrates Australia's failure to protect vulnerable people who have immigrated in search of a safer home and advocates for greater alignment with international obligations.
Principle of non-refoulement
Under international law, Australia has the obligation to protect the human rights of all migrants, regardless of whether they are held in a detention centre onshore or offshore. One obligation Australia has is to uphold the principle of non-refoulement under Article 33 of the Convention Relating to the Status of Refugees, which Australia ratified in 1954. This obligation prohibits States from expelling or returning a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Furthermore, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Convention against Torture) states that “[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Under the Convention against Torture, Australia continues to risk breaching the non-refoulement principle by intercepting and detaining asylum seekers on Manus Island or Nauru. This means instead of protecting these asylum seekers from harm, Australia is actually “exposing them to foreseeable and real risks of irreparable harm”.
There are a number of examples of Australia’s attempt to breach the non-refoulement policy. In 2012, the UN Committee against Torture (CAT) heard the case of Chun Rong, a Chinese national spiritual leader of Falun Gong, who was refused a Protection Visa and faced deportation to China, where Falun Gong was outlawed after it became illegal to practise Falun Gong. Prior to his arrival in Australia, Chun Rong was detained by Chinese authorities for 16 days after organising a protest against the arrest of a Falun Gong member. Rong was tortured every day, being “was handcuffed to iron bars and suffered repeated electric shocks on his back” and“burned with cigarettes on the back of his neck and that the handcuffs cut into his wrists and hands”. After Rong’s visa was refused by the the department of HomeAffairs, the Administrative Appeals Tribunal and then the Federal Court of Australia, the CAT found that Australia had failed to meet its obligations of non-refoulement given the risk of the applicant being exposed to torture if deported back to China.
In another case, Mr Thirugananasampanthar fled Sri Lanka after being persecuted by armed soldiers and paramilitary gangs for his involvement with the Liberation Tigers of Tamil Eelam (LTTE) during the Sri Lankan Civil war. “An unidentified armed gang came to his house and questioned him about LTTE; in June 2008 two men attempted to abduct him from school; between October 2009 and January 2011 he was hiding at St. Mary’s Cathedral in Jaffna, since armed gangs regularly visited his family to look for him; and in May 2011, the Sri Lanka Army made a house check during which the complainant was attacked and beaten.” Mr Thirugananasampanthar was detained for six days and managed to escape after his father attempted to pay a bribe for his release, but was subsequently told that he would be killed if he was captured again. Mr Thirugananasampanthar was denied asylum in Australia, and subsequently made an appeal to the Federal Court of Australia. While the appeal was pending, Mr Thirugananasampanthar was informed that he would be deported. He petitioned the UN CAT to stay the deportation pending their review; nevertheless, the deportation proceeded. This means that the appeal never went ahead at the Federal Court of Australia because Mr Thiruganasampanthar’s own lawyers, the Federal Court of Australia and theCAT Committee were never able to contact him following his deportation.
In a more recent case, Mr M.K.M, a Muslim Afghan refugee, arrived by boat in Australia to pursue safety after the Taliban accused him of working with foreign governments and being involved with a bomb plot. While he was detained, he witnessed his father being executed. In a complaint filed to the CAT, Mr M.K.M stated that if he returns he will be “identified, persecuted and possibly killed upon return as an escapee from the Taliban.” Even though these facts were undisputed, the Australian government stated that Mr M.K.M “would not be persecuted because of his Tajik ethnicity and that he could reasonably relocate to another area within Afghanistan, including Kabul”. The Committee found that Australia failed to protect Mr M.K.M. from being subjected to torture or ill-treatment if returned to Afghanistan. The Committee held that Australia would be in breach of its non-refoulement obligations under the Convention against Torture by deporting Mr M.K.M. to Afghanistan.
Section 197C of the Migration Act states that it is an “officer's duty to remove as soon as reasonably practicable an unlawful non-citizen…irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non- citizen.” This provision is controversial as it contradicts Australia’s responsibilities under the Convention Relating to the Status of Refugees and Convention against Torture by conferring upon the Minister for Home Affairs the power to detain a person who has fled their own country due toserious risk of facing persecution and torture. It is not disputed that Australia has the right to protect its borders; however, Australia must not infringe its international obligations in doing so.
Arbitrary Detention
As a State that has ratified the International Convention on Civil and Political Rights (ICCPR), Australia has the obligation to ensure that “everyone has the right to liberty and security of person and shall be subject to arbitrary arrest or detention.” In January 2025, the UN Human Rights Committee (UNHRC) ruled that Australia is responsible for the arbitrary detention of asylum seekers in Nauru, stating that: “A State party cannot escape its human rights responsibility when outsourcing asylum processing to another State….Where a State exercises effective control over an area, its obligations under international law remain firmly in place and cannot be transferred.” The Australian government disputed their responsibility, arguing that human rights violations in the Nauru Regional Processing Centre did not occur in Australia’s jurisdiction and therefore Australia could not be held responsible. However, the Committee found that “Australia had significant control and influence over the regional processing facility in Nauru, and thus, we consider that the asylum seekers in those cases were within the State party’s jurisdiction”
In 2024, the UNHRC heard a case which involved 24 unaccompanied minors from Myanmar, Sri Lanka, Pakistan, Afghanistan, Iran and Iraq. These individuals were intercepted on their way to Australia after fleeing persecution in their home countries. They were brought to Christmas Island and held for 12 months between 2013 and 2014. After this, they were transferred to a detention centre in Nauru and were held in overcrowded conditions with insufficient healthcare, sanitation and water supply. Concerningly, they were granted refugee status in September 2014, but continued to be held in Nauru. The UN Human Rights Council was particularly concerned as Australia failed to take into consideration the conditions that they were living in given the extreme vulnerability of these minors given the lack of care that they received.
In another example, Mr Baban, an Iraqi-Kurd asylum seeker, and his infant son arrived in Australia in June 1999 without any travel documents. They were detained in an immigration detention centre in Sydney. Mr Baban stated that he was threatened by the Kurdistan Democratic Party and that he was further targeted by the Iraqi Mukhabarat Party, which had attempted to carry out assassinations against him. While detained Mr Baban participated in a hunger strike where it was alleged that hunger strikers were “cut off from power and contact with the outside world.” He was transferred to another detention centre in Western Australia where he and his son were held in isolation without any windows or toilet, and where legal advice was refused.
Arbitrary detention of a person must be reasonable and necessary as “[e]ven if the regime of immigration detention of unlawful non-citizens is consistent with Australian law, this is not sufficient for international legality. What is required is that all measures of detention can be shown to be both reasonable and necessary in the circumstances of each detainee.” However, this is not the case in Australia: as the stated by High Court Chief Justice Gleeson in the case of AI-Kateb v Godwin,“[o]ne of the features of a system of mandatory, as distinct from discretionary detention is that circumstances personal to a detainee may be irrelevant to the operation of the system. A person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.”
Conclusion
Unfortunately, Australia has a long history of infringing international law by arbitrarily detaining people and returning them back to the country from which they had escaped. Australia can, and must, do better to protect the lives of the many vulnerable people who come out of fear for their own safety. Given that the world is becoming increasingly interconnected and global conflicts continue to rage on, it is more important than ever that Australia upholds its obligations to protect the rights of asylum seekers and refugees under international law.
Sources:
Christina is a passionate advocate for people with disabilities and marginalized communities, drawing from her own experience as a neurodiverse woman. She combines her lived insight with practical legal experience, including roles in community legal centres and a clerkship at the Department of Veterans' Affairs. Christina is dedicated to challenging stigma and advancing social justice within the legal sector.
Comments