NON-REFOULEMENT

The fate of Iranians who are returned to Iran involuntarily is especially troubling. Iran’s human rights record recently has been very bad. Evin prison in Tehran has a record which is deeply shocking. Involuntary returnees can expect to be sent there. See notes on the Iranian human rights problem.

On 12 December 2003 the High Court refused special leave in the case of ‘Applicant M38’.

M38 was the lead ‘non-refoulement’ case. The non-refoulement cases are designed to prevent the forcible repatriation of Iranian asylum seekers whose refugee claims have failed.

Section 198 of the Migration Act to ‘remove’ a person from Australia after his or her asylum claim has failed. The argument in the case is that the power conferred by s. 198 is limited in its content, so that, for example, it would not permit a person to be taken outside Australian territorial limits and placed on a rock in the middle of the ocean; or be placed on an iceberg in Antarctica. If it did not permit such steps, then clearly the power to “remove” is ambiguous. If it is ambiguous, it should be read down by reference to Australia’s convention obligation, notably Article 33 of the Refugees’ Convention and Article 3 of the Torture Convention. Those Articles forbid sending a person back to a place where they will be persecuted or tortured.

We argued that the power to ‘remove’ should not be understood as permitting Australia to become a torturer or executioner at one remove.

The Court rejected these arguments.

What this means is that the government has succeeded in arguing that it has the power to force a person back to their country of origin, notwithstanding that the person will be tortured or killed on their return.

The consequences can be viewed at two levels.

First, at a practical level this means that the Government will now move to lift injunctions in place in existing non-refoulement actions and to strike-out the claims. I cannot think of any way of resisting those applications. It is likely that forcible removals will begin shortly thereafter.

Second, at a political level, this represents a quite dramatic marker of Australia’s new position in the world. The Court has now accepted the Government’s argument that it has the power to send people to be tortured or killed. It seems that the Government intends to exercise that power.

It saddens me to bring you this news. We did everything we could.

It is especially devastating for those who, like me, know ‘Applicant M38’ personally. He sent me a video tape which had been smuggled out of Iran. The video is shot in a medium size room, apparently in Evin prison, Tehran. On one side of the room are two men who look like officials. They are reading in a flat, bureaucratic manner from a lengthy document. Keeping apart from them, and some distance away, is a group of five or six people who look as though they may be friends, or members of a family. On the opposite side of the room a man lies on a table, facing the ceiling. For the most part, the camera - handheld and grainy, but with the official Iranian watermark in the bottom right-hand corner - concentrates on the officials and their reading. At one point the camera swings to the family group, who look increasingly distressed and agitated. It swings to the man on the table who also looks distressed and sits up, only to be pulled down again by two large men standing beside him. The camera then concentrates on the officials and their reading: until eventually it turns to the man on the table as his eyes are removed with forceps.

‘Applicant M38’ sent me the videotape, with a note which read: “This is what I fear. Please help me.”

Does this result truly reflect the will of a majority of Australians? In the past few months, I think there has been a perceptible softening of public attitudes to asylum seekers and refugees. Perhaps I am wrong. Nevertheless, I think many ordinary Australians would recoil from the idea of a Government which is willing and anxious to send innocent people to torture or death.

The only solution now available is a political solution: in individual cases, section 417 applications and (where relevant) section 48B applications.

At a more general level, I think there should be a public campaign directed at the Government to persuade it not to exercise the power it has contended for and, in the longer term, to circumscribe that power so as to prevent the consequences which are now plainly possible.