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Australia's Forcible Deportations of Unwell Asylum Seekers: Legal Obligations

JURIST Guest Columnist Greg Barns, Lecturer in Jurisprudence RMIT University (Melbourne, Australia) and Anna Talbot, Legal and Policy Adviser Australian Lawyers Alliance discuss the human rights of unwell asylum seekers at the refugee facility on Manus Island...

On April 30th, the National Court of Papua New Guinea granted an urgent request for an injunction to prevent Lebanese asylum seeker Azzam el Cheikh from being forcibly deported by the Australian and PNG governments and returned to the homeland he fled in 2013. Mr. el Sheikh has suffered serious physical and mental mistreatment, and at least one doctor in Port Moresby has declared him unfit to travel.

Mr. el Cheikh and his case raises an important moral and legal issue - should Australia be party to forcibly deporting individuals who are demonstrably not fit to travel?

Mr. el Cheikh had resisted deportation on two previous occasions. According to Behrouz Boochani, an Iranian asylum seeker, Mr. el Cheikh suffered injuries and was placed in a filthy jail cell on Manus Island before being taken to Port Moresby last week. "He was seriously hurt on his neck, back and hand and they put him in Lorengau police station. This man has been on a hunger strike in the past few days," Mr. Boochani told the media on April 4.

Sources who have spoken to us in the last fortnight said that on April 29 Mr. el Cheikh was declared medically unfit for travel. He has been denied pain killers and the conditions he endured at the Lorengau prison on Manus Island were horrific — he had no change of clothes, was denied a shower for about three weeks and his cell walls were smeared with feces.

To deport a person when they are physically and mentally exhausted and injured is cruel. Irrespective of whether or not the individual might face political persecution on return, it is morally reprehensible for a so-called civilized nation like Australia to force a person to travel when their health is fragile.

Unfortunately, Australia has a history when it comes to this form of cruelty. Back in 2007 a report from researchers at La Trobe University and the Hotham Mission in Melbourne found that "in some cases the Australian government has pursued removal outcomes with a serious disregard for the health and wellbeing of removes...In particular, there has been a lack of concern for the welfare of asylum seekers who are facing removal despite suffering a serious illness."

Forcible deportation of asylum seekers is a decision made by the Department of Immigration and Border Protection, without regard to the individual's circumstances. There is no provision in the Migration Act, or any departmental rules or protocols, that ensure an independent assessment of the individual's current health or access to care and basic necessities in the country to which he or she is being deported. This was not always the case. As Glenn Nicholls from Swinburne University and the author of a 2007 book on Australia's deportation policy notes, the conservative government led by Prime Minister Robert Menzies in 1958 introduced such a protection. The Immigration Minister in that government noted at the time; "The deportation powers are formidable and capable of abuse. Therefore, it is the duty of the Department to inform the Minister as fully as it is reasonably possible about the facts, and related circumstances, of each case." Today the formidable powers remain, while this essential protection is gone.

Besides the moral issues at stake, there is also Australia's obligation under international law to consider. The International Covenant on Civil and Political Rights and the Convention Against Torture (CAT) prohibit subjecting a person to torture or cruel, inhuman or degrading treatment or punishment. The Refugee Convention and the CAT further prevent the deportation of a person if they would be in danger of being persecuted or subjected to torture in the country they are deported to.

Australia might argue that it is PNG, not Australia, that has obligations in relation to the asylum seekers Australia has sent to Manus Island. This is clearly false. The Senate Standing Committee on Legal and Constitutional Affairs recently found in no uncertain terms that Australia is liable for the safety of asylum seekers in PNG (and Nauru). Australia cannot evade its responsibilities by tricky manipulation of international borders or contractual terms. Australia is calling the shots and Australia must adhere to the most fundamental moral obligation to treat sick people with dignity. Instead, however, it has ordered the deportation of a seriously ill man with no concern for his health or Australia's legal obligations toward him. In doing so, it is complicit in cruel, inhuman or degrading treatment and likely breaching obligations under international law to ensure deportations do not give rise to a risk of persecution or torture.

Greg Barns represents asylum seekers in applications and appeals before the Federal Magistrates Court and the Federal Court and also practices in the areas of discrimination and occupational licensing and advises and appears for prisoners in Administrative Law cases. Anna Talbot joined the ALA in January, 2016 and manages day to day federal policy and advocacy activities. She previously engaged in advocacy for Amnesty International, including work with the UN Office of the High Commission for Human Rights.

Suggested citation: Greg Barns and Anna Talbot, Australia's Forcible Deportations of Unwell Asylum Seekers: Legal Obligations, JURIST - Academic Commentary, May 11, 2017, http://jurist.org/forum/2017/05/Barns-Talbot-Australias-Forcible-Deportations.php




This article was prepared for publication by Kelly B. Cullen, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

Corrections
1
This article has been updated to reflect that Mr. el Cheikh does not have a personal doctor in PNG, and that he is not mentally ill despite suffering from mistreatment.
May 13, 2017 1:46 PM
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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