Australia may be caught out by its tough policy on asylum seekers,  with 83 asylum seekers now expected to be returned to Sri Lanka where they face significant risk of persecution.

Following an unprecedented agreement to send the asylum seekers from Christmas Island back to Indonesia, a spokesperson for Immigration Minister Kevin Andrews said that Indonesia will be asked not to return the asylum seekers to Sri Lanka. “We will not directly or indirectly return persons to a situation where they face persecution,” she said.

However, a senior Indonesian official has said the asylum seekers will be returned to Sri Lanka. This contradicts Mr Andrews’s position and puts Australia is in clear breach of its international obligations on refugees.

Australia’s policy of trying to keep transiting asylum seekers in Indonesia has been in force since just before the SIEV X incident in 2001, in which an overcrowded asylum seeker boat sank in international waters, leading to the deaths of more than 350 people.

The return of the Sri Lankan asylum seekers is the first time that Australia has returned asylum seekers already in Australian territorial waters to the country from which they last came.

The arrangement for Indonesia to accept back the asylum seekers appears to be operating under the recently signed “Lombok Treaty”, in which both countries support the other’s sovereignty or territorial integrity. However, Indonesia is not a signatory to the convention on refugees.

The head of Investigation and Law Enforcement with Indonesia’s Immigration Department, Syaiful Rachman, refused to guarantee that the asylum seekers could apply for asylum through the United Nations High Commissioner for Refugees, and said that if they arrived in Indonesia without visas they should be deported to Sri Lanka immediately.

Indonesian Foreign Ministry spokesman Desra Percaya also said Indonesia would accept the asylum seekers on condition that they are “just in transit in preparation to send them back to Sri Lanka”.

Mr Rachman said the Sri Lankan government had guaranteed that the asylum seekers would not be persecuted. However, according to a document circulated by the Australian Council for International Development, asylum seekers returning to Sri Lanka face significant risks. There are reports of returned asylum seekers and refugees being arrested on arrival, with deaths both in police custody and at the hands of the army. There are also serious protection concerns for individuals who have been politically active, and on the basis of ethnicity.

There are now almost 100,000 Sri Lankan Tamil refugees in India, with 20,000 arriving in the past year. Sri Lanka also has 70,000 internal refugees following a serious upsurge in fighting between the Sri Lanka army and Tamil Tiger separatists over the past year. Along with the fighting have been widely documented cases of murder, abductions, torture and rape of ethnic Tamil civilians.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey