Sinhalese asylum seekers' on-water claims accepted by UN

Manoj sits cross-legged on the concrete floor. Apart from the sheet of plastic on which he rests, and a piece of paper beside him, the room is bare.

In the kitchen, there are no table and chairs, just the absolute necessities for cooking and eating. There is no heating, despite the cruel temperatures of Nepal. Manoj – not his real name – lives in this apartment with his wife and two children, aged 7 and 9.

“I feel free now,” he says. “I feel free now because I have to …” He breaks down before he finishes the sentence, breathing his sadness away, his head in his hands, tears in his eyes.

Manoj’s family, among the 16.7 million refugees living in varying degrees of poverty and desperation around the world, are the collateral damage of Australia’s turn-back-the-boats policy.

“In the middle of the sea I saw the Sri Lankan navy uniform and my wife held my hand tightly ... we never thought they would hand us over to the Sri Lankan navy.”

More than that, they are proof that, despite government claims to the contrary, Australia, in its haste to stop the boats, has breached the fundamental principle of refugee protection: that refugees shouldn’t be returned to the places from which they fled if they face persecution or other serious human rights violations.

Something very bad was happening...'

It was July last year when Manoj, his wife and their children were picked up by Australian authorities as they made their way, with 37 others, on a boat from Sri Lanka. Four of the 41 were Tamils. The others, like Manoj and his family, were Sinhalese.

Having heard that Australia had effectively shut its borders, the group was aiming for New Zealand. But dangerous seas, illness and a defective boat forced them to seek landfall. They made it to the waters around the Cocos Islands – the closest Australian territory to Sri Lanka. There, the Australian Navy intercepted them. They had been at sea for about two weeks.

After spending a couple more nights aboard their own boat while Australian mechanics tried to get the engine running, they were taken aboard the navy ship. The following day they were transferred to a Customs and Border Protection vessel.

“They put all the men under the deck,” Manoj says. “My children and my wife they put separate. Then they told us they would interview us in the morning. We told them that we are in a bad situation because we can’t concentrate.”

Despite this, the group was compelled, two at a time, to give interviews. “They sent us on an open deck with machinery working,” Manoj says. “It was noisy, windy. They gave us a satellite phone and they started the interview.” On the other end of the phone, on the Australian mainland, was an Australian immigration decision-maker.

Kuruppu, who is also now in Nepal, was on the boat, too. Like Manoj, he says that he couldn’t hear the person at the other end of the line properly and that the phone kept cutting out. “So we give the satellite phone to that [Customs and Border Protection] officer and he’s trying, trying, trying, trying. Sometimes I had to wait five, six minutes to connect it.”

Kuruppu estimates that the satellite phone disconnected 10 or 15 times during his interview, which lasted between half and three-quarters of an hour.

Manoj recalls, “At that time, I knew something was going wrong. I knew something very bad was happening.”

Enhanced screening

Manoj, Kuruppu, their families and the others onboard their boat were, unbeknown to them, being subjected to what is called the “enhanced screening process”.

Introduced by Labor in 2012 specifically to apply to Sri Lankan asylum seekers arriving by boat, enhanced screening is a cursory interview to determine whether an asylum seeker will even be allowed to apply for refugee status. Those who immigration decision-makers deem may engage Australia’s international protection obligations are “screened in”.

Being “screened in” doesn’t mean that asylum seekers are granted protection, just that they are allowed to enter the protection determination process. Those “screened out” are sent back to where they came from as soon as possible, often within 72 hours of arrival.

Since its inception, Australia has returned more than 1300 Sri Lankans under the enhanced screening process. The most recent group, totalling 37 asylum seekers, was returned in late November 2014. At least one man from that group remains in prison in Sri Lanka.

The Australian Human Rights Commission, among others, has raised concerns that the screening interviews may be too brief and insufficiently rigorous to allow asylum seekers to raise their protection concerns adequately.

Critics have suggested that the screening process may in fact become a sort of de facto refugee determination process, where asylum seekers’ claims are determined in a system absent of due process – a fundamental principle in a society governed according to the rule of law. Under enhanced screening, asylum seekers do not have access to legal advice, a right of appeal or independent oversight.

On-water matter

In late 2013, after the election of the Abbott government, the then immigration minister, Scott Morrison, elevated a new term – “on-water matters” – into the Australian political lexicon. These were details of navy, Customs and Border Protection actions, including interception of asylum-seeker vessels, which could not be spoken of publicly: things that needed to be kept from the people smugglers and, consequently, the Australian public.

“On-water matters” was the term used to justify the dearth of information on exactly how Australia was going to “stop the boats”.

It was in this context that the Abbott government extended “enhanced screening”.

Manoj, Kuruppu and the others on their boat were subjected to “on-water” enhanced screening. They were not even allowed to land in Australia before they were interviewed, as Sri Lankans had been under Labor. Hence the noisy ship, the lack of privacy and the satellite phone.

“We couldn’t say what we want to say,” Kuruppu told The Saturday Paper. “We did not trust them. We can’t trust who was on the other side of the phone.”

Manoj tells a similar story. He said that when his interviewer asked him why he left Sri Lanka he didn’t tell her that he had been subjected to years of ongoing harassment and persecution by government forces because of his charity work and business involvement with Tamil victims of the civil war in the north and east of the country.

He didn’t tell the immigration department official on the other end of the fragile line about his life on the run, moving constantly to keep away from authorities because they accused him of being linked to the Liberation Tigers of Tamil Eelam – the Tamil Tigers.

He didn’t tell them that twice he had been “white-vanned” – an established practice in Sri Lanka where those suspected of opposing the government were abducted in white mini-vans and sometimes taken to secret locations where they were raped and tortured. Manoj was lucky: he was merely beaten before he escaped.

Instead, he said to his interviewer that he left Sri Lanka “because I’ve got a problem”. He explained: “I don’t want to tell all for her because I can’t trust anyone. I told her that I don’t want to go back because people are trying to kill me, but I don’t tell all the story.”

Manoj said that he wanted to be taken to shore, to get his bearings and compose himself, so that “after a while, I can concentrate”.

“I thought they were going to take us to the land – that’s why I don’t want to tell all the things.”

Handed back

Over the following days, and only slowly and briefly, the fog of on-water operations lifted. It emerged that there was another boat with 157 Sri Lankan Tamils detained somewhere on the high seas, a practice that on Wednesday the High Court deemed to be lawful.

Six days after their enhanced screening interview, the 41 were told they were going to be transferred to another vessel. They thought they may be joining the larger Tamil group, about whom they had been told.

However, following a lack of success sending the 157 to India, and a High Court intervention, the other Tamil group was transferred to Nauru.

A different fate awaited the 41.

Kuruppu was told to put on a lifejacket and, with his wife and three children, to get into a small Customs and Border Protection boat. Then, as they restrained him, the Australian border officials showed Kuruppu “a very little paper and read, ‘Now we are going to hand over you to the Sri Lankan authorities’ ”.

He didn’t understand what he had just been told. It was beyond his comprehension. “In the middle of the sea I saw the Sri Lankan navy uniform and my wife held my hand tightly. I was very confused. But we didn’t have anything to do. The Sri Lankan navy took us from the small boat. I don’t have any words to explain that feeling because it’s so difficult. It’s so sad because we never thought they would hand us over to the Sri Lankan navy.”

Manoj recalls that moment. “We were feeling like dead people.”

'Screened out'

All but one of the 41 had been “screened out”. Those at the other end of the satellite phone had decided they were not Australia’s responsibility. The group was taken back to Sri Lanka and interrogated. While at least one Tamil man was hit – Kuruppu saw blood across his face, and I interviewed him when I was in Sri Lanka late last year – the rest were not harmed.

But during the investigation they were threatened. According to Kuruppu, some of their Sri Lankan interrogators told them that because Australia and the international media were watching “we can’t do anything [to you now]. But all of you, we will see you again.”

Following their release – one man remains in jail, charged with people smuggling – Kuruppu, Manoj and their families moved from place to place, convinced by the threats they had received, and the monitoring of their homes and extended families, that they remained in danger from the Sri Lankan government.

It took three weeks to organise passports and visas through “underground people”. The same people organised a smooth transit through the Colombo airport, paying the necessary bribes. Because they had no money, friends and acquaintances chipped in to pay the airfares.

Manoj arrived with his family in Nepal in early August. He immediately went to the United Nations High Commissioner for Refugees. Three weeks later he was officially registered as an asylum seeker.

“After two-and-a-half months they gave us an interview and I gave them all the story and the documents.”

Then he waited. A few months later, he received a decision.

Manoj picks up the piece of paper he has next to him on the plastic sheet. It includes photographs of himself, his wife and his children, and has the official stamp of the UNHCR. He reads it, struggling over some of the English words: “We are pleased to inform you that after a thorough assessment of your refugee claim and careful consideration of all available information UNHCR has recognised you as a refugee under its mandate.”

Kuruppu has a similar letter. They are both dated January 1, 2015.

Six months after Australian immigration decision-makers determined that Manoj, Kuruppu and 38 others did not deserve an opportunity to apply for refugee status – a determination made by phone while the asylum seekers were detained at sea – and handed them to officials of the very government they had fled, nine had been found by the international refugee agency to have a “well-founded fear of persecution” and therefore to be in need of protection.

Again, Australia failed to meet the most basic tenet of the Refugee Convention.

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