BY CHARLENE FERNANDO –
Successive Australian governments have been no stranger to condemnation for their hard-line stance on asylum seekers. They make no apology for it, cloaking their policies in a robe of ostensible utilitarianism. However, in recent months, the Coalition has faced strong backlash both domestically and internationally for its treatment of the Murugappan family, who have come to be known simply as the “Biloela Family”. This is in reference to the Queensland town in which they were working and residing before being placed in detention. This latest bookmark in Australia’s uncompromising approach towards asylum seekers has raised questions about the authenticity of its commitment to various international instruments. Further, it has cast doubt on whether the government has seriously breached its fundamental human rights obligations.
Background
In 2012 and 2013 respectively, Nades and Priya, both from the minority Tamil community in Sri Lanka, arrived separately in Australia by boat. Their arrival followed a horrific 26-year civil war, which saw the persecution and systematic killing of thousands of Tamils. It is estimated that in the final months of the war, these killings escalated exponentially, with over 145,000 Tamils executed by the Sri Lankan military. They arrived before a policy change was enacted by the then-Labor government in July 2013, which proclaimed that asylum seekers who arrived by boat would never be resettled in Australia. After marrying in 2014, Nades and Priya moved to the rural Queensland town of Biloela, where they found work and had two children, Kopika and Tharnicaa. The family has been locked in a legal battle since March 2018, when they were taken from the rural Queensland town of Biloela to a detention centre in Melbourne, after Nades and Priya’s visas expired.
In August 2019, an attempt was made to have them deported to Sri Lanka, however an emergency injunction was granted at the eleventh hour, forcing the plane to turn back mid-flight and land in Darwin. Since then, they have predominantly been detained in a “largely disused” detention centre on Christmas Island. This is while one aspect of their legal claim, relating specifically to Tharnicaa’s protection claim remains ongoing. Tharnicaa, currently 4, developed pneumonia and sepsis in June 2021, leading to her evacuation to Perth Children’s Hospital. The detention centre staff’s delayed response to her progressively declining condition was strongly castigated, with family friends and representatives from the Australian Medical Association (AMA) calling out the significantly inadequate conditions of detention centres, particularly for children. As put by the AMA’s Western Australian branch president Andrew Miller, “even though [the government] is spending millions of dollars on this incarceration of this family on Christmas Island they still seem to be unable to provide proper medical care for children, innocent children, when they need it.”
The cost of detaining the family has also attracted much censure. In 2019, the re-opening of the Christmas Island detention centre cost taxpayers approximately $27 million, despite holding just the four Murugappan family members at the time. From August 2019 to January 2021, the cost of detaining them on Christmas Island had surpassed $6 million. These costs were termed “morally disgraceful and obscenely expensive” by Federal parliamentarians, including Greens senator Nick McKim.
Unanimous Condemnation
Both domestically and internationally, the obstinacy of the Australian government to make an example of the Murugappan family has reflected poorly on its capacity to uphold crucial human rights principles. In particular, the government has leveraged the situation as a warning to other asylum seekers seeking to enter Australia through alternate means. Comparisons have been drawn between the inflexible treatment of the Murugappans and Peter Dutton’s use of his ministerial discretion to provide visas to Italian au pairs in breach of their work conditions. The double standard in these two incidents has led to questions about the “god powers” given to immigration ministers. More specifically, it has been called into question whether these powers which allow ministers to exercise “non-delegable, non-reviewable and non-compellable” discretions are critically flawed, lending themselves to abuses of power.
In 2019, special rapporteurs from the United Nations Humans Rights Committee asked the Australian Government to end “the existing situation of detention” for the Murugappans, recommending a shift into a “community setting arrangement”. However, this request has largely been ignored. While no significant diplomatic or political action has been taken against Australia yet, its consistently poor record with asylum seeker policies has had a negative reputational impact on the global stage. In the 2021 Universal Periodic Review by the UN Human Rights Council, Australia was strongly criticised by more than 40 countries for its “continued use of offshore processing and prolonged detention for asylum seekers”. These states called for determinate detention periods and regular judicial review.
Is Australia’s Position Justified?
Historically, both the Liberal and Labor parties have taken harsh approaches to border control and their policies are often entwined with hyper-nationalistic rhetoric. Former Prime Minister John Howard’s infamous “we will decide who comes into this country and the circumstances in which they come” speech is a case in point. Another example is the Labor Government’s decision in 2013 to hold asylum seekers in the Manus Island Detention Centre, which was coined “Australia’s Guantanamo” for its numerous human rights abuses. Immigration Minister Alex Hawke stated that allowing the Murugappans to resettle in Australia would cause a spike in people-smuggling, given “[people-smugglers] watch developments closely, they take account of any decisions we make.” He also stated that “we have to make a tough decision to continue our border protection, but it is the right decision, because the trade in human misery means lost life, it means more expense and a loss of social cohesion”.
This utilitarian approach might be somewhat justifiable, if it weren’t for the numerous human rights breaches which have occurred not only in this case, but with the detention of thousands of other asylum seekers. Although states do have the sovereign right to protect their borders, this should not be achieved at the expense of fundamental human rights standards. As a country which has, and continues to, strongly advocate across a broad range of human rights issues domestically and internationally, Australia has good reason to ensure it is fulfilling its obligations. Indeed, the capacity of Australia to be a credible advocate for human rights abroad may be compromised by its tarnished record.
Australia is obliged not to return asylum seekers to countries where they face a real risk of human rights violations, pursuant to the International Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child (CRC). Although the current DFAT country information report outlines that Sri Lankans face a “low risk of torture on a day-to-day basis”, critics have expressed concern that the report may have outdated information, and has also not provided clear evidence for the conclusions it has drawn. Given Nades’s links to the Liberation Tigers of Tamil Eelam (LTTE), an organisation which fought against the government during the Sri Lankan Civil War, the Murugappan family is worried that they could face persecution if they are returned. These fears are certainly not unfounded. In recent years, there have been several reports outlining the “deteriorating human rights situation in Sri Lanka”, with documented instances of torture being committed against civilians, and hyper-nationalistic attitudes. If the Murugappan family is deported, the high level of publicity their case has attracted exposes them to a significant danger of persecution, and potentially death.
Additionally, Australia’s treatment of Tharnicaa and Kopika, both Australian-born children, is steering dangerously close to being in breach of numerous provisions of the CRC. Most notably, the prohibition against arbitrary detention of children, which is only to be used as a last resort (Art 37) has clearly been breached. It is difficult to establish under what grounds their detention is lawful, as they did not seek asylum in the manner in which their parents did, which under Australian law is considered unlawful. In any case, it verges on outrageous for a four and six-year-old to be escorted by guards to and from school every day.
However, there are reasons to be hopeful. A cabinet reshuffle earlier this year granted MP Alex Hawke the portfolio of Minister for Immigration. His appointment has renewed hopes that he may exercise his ministerial discretion to allow the family to live in Australia. Despite his comments on people-smuggling, there is tentative anticipation, fuelled by his flexibility in permitting the Murugappans to live in community detention in Perth from June 2021 while their legal claims are assessed. Additionally, Barnaby Joyce’s appointment as Deputy Prime Minister has also elicited cautious hope that he may lend his support to the cause, given his previous outspokenness about the treatment of Tharnicaa and Kopika. As the hashtag #ReturnToBilo gains traction on social media, it is possible that the collective voice of citizens, civil society groups and international organisations may force the Government to yield its unyielding stance. Blanket rules, with no exceptions or acknowledgement of special circumstances are rarely likely to succeed, and the Murugappans may perhaps be the catalyst of significant policy change in Australia.
