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Kevin Rudd, breezing in the wind, just like Philip Ruddock

World Outrage about Kevin Rudd's Big Asylum Freeze

Swift condemnation from human rights lobbyists and agencies

Image: thanks to Bill Leak cartoons and The Australian.

From psychiatrist Jon Juredini to former PM Malcolm Fraser, from human rights lawyer Greg Barns to former Democrats Senator Andrew Bartlett, outrage swelled fast around Kevin Rudd's nasty processing freeze of Sri Lankan and Afghan asylum seekers.

The anger did not stop just there, it went international within a week. Human Rights Watch fumed. The UN's High Commissioner for Refugees issued a statement, the Norwegian Refugee Council spoke out, and the Danish Refugee Appeals Board raised its voice in ire in response to suggestive references by Australia's Foreign Minister Stephen Smith about the Board having started a similar freeze.

What's on this page

This page brings together several responses from Australia's domestic advocates and refugee law experts as well as from International agencies to the Rudd government's April 2010 processing freeze of Sri Lankan and Afghan asylum seekers.

Related pages

21 April 2010: Rudd re-opens Derby's Curtin detention hell - Temps climbing to 44 C. Guards that treat refugees with violence and disdain, telling them they're illegals who will never make it into 'Australia proper'. Immigration officers who screw up formal requests for medical or other assistance and throw them in the rubish bin. That's how many remember the Curtin detention centre...

17 April 2010: Labor compassion and decency freezes over in Election Hell - Some had expected it sooner, but finally Labor has buckled under the weight of the attack dogs. In a joint and televised joint press conference by Stephen Smith (Foreign Affairs), Chris Evans (Immigration) and Brendan O'Connor (Home Affairs) - a sad affair where they resembled The Three Stooges - they announced Canberra's Big Freeze.

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Click the links below to jump down to the articles and items on this page with the same title.

Why the PM's backflip can't stop the asylum boats from coming

Paul Toohey
The Advertiser
April 16, 2010 8:08PM

Two are needed to play the roles of good cop, bad cop, but the Rudd Government is trying to play both over asylum seekers.

The announcement it temporarily would suspend processing of refugee applications for Sri Lankans and Afghans, who arrived on Christmas Island, was bad cop.

New Sri Lankan arrivals will not have their claims processed for three months, and Afghans for six. What this most likely reveals is the federal election will be held between three and six months from now.

The Government claims it is awaiting an assessment report from the United Nations High Commission for Refugees, and complementary intelligence briefings, which could show problems have eased in Sri Lanka and, therefore, people could return home.

Immigration Minister Chris Evans said: "There was a civil war in Sri Lanka. It's ended. They've returned to normality." Many think this is a premature view. Likewise, the government's claim Afghanistan now was "evolving" to a more peaceful place was derided by some Afghanistan experts as ridiculous.

There is a more cynical view.

In the case of suspended Afghan applications, once their six-month waiting period is up, they must have their applications processed within 90 days.

We will not know their fate until at least next January - after an election.

Sri Lankans have been less assured of being granted Australia's protection. Most are Tamils, who lived in northern areas of Sri Lanka previously administered by the Liberation Tigers of Tamil Eelam, which Australia regards as a proscribed terrorist group. Some asylum seekers have, and will, be found to have been involved with the Tigers - decimated by government forces last year.

Many civilian Tamils supported the Tigers because the Sri Lankan government itself had been unusually cruel. It would be a battle to name which side has more blood on its hands.

Tamil asylum seekers I spoke to in Kuala Lumpur said they could not trust Sri Lanka's promises they would be safe if they returned. They also complained non-genuine refugees were joining the bandwagon to Australia, not because they were under threat but because now seemed like an expedient time.

The timing the Federal Government has outlined for Sri Lankans - being a three-month suspension, plus the 90 days (or less) processing - could see Sri Lankans being packed up and sent home in the weeks before a federal election, if it were held on, say, Saturday, October 16, or earlier.

Sending Sri Lankans home would be election publicity gold for Mr Rudd, who knows - as with John Howard before him - it will not be the so-called doctors' wives, who hate asylum-seeker politics, who would return him to power.

Even though most unauthorised arrivals here come by plane with legitimate visas, and then overstay and claim asylum, there is a mindset which detests those asylum seekers whom we used to call boat people.

It would be easy to mount an argument those who come by plane with the intention of abusing their visa conditions are more brazen. We do not see images of them moving through our international airports.

Instead there are confronting scenes of people rocking up by the boatload, sometimes burning their boats, sometimes destroying their identification, and forcing Australian border protection authorities to engage if not rescue them.

There no longer is any question the Government's more humanitarian stance on asylum seekers - ending the Pacific Solution by closing camps on Nauru and Manus Island, allowing permanent instead of temporary visas, no longer turning back boats, and giving those people whom immigration authorities on Christmas Island have denied protection one extra right of appeal - has encouraged the recent surge.

Asylum seekers waiting their turn to come to Australia from Malaysia and Indonesia say it is so. They know the Pacific Solution is dead. Many would just as happily go to Canada or Europe, but it is cheaper to travel to Australia.

Regional representative of UNHCR, Rick Towle said: "If increasing numbers can be explained by anything, it's because Australia offers fair and humane refugee protection policies. Many other countries don't."

Refugee advocacy groups welcomed Labor's softening, yet many still have deep issues with Mr Rudd's policy of offshore processing.

Try to get them to say it on the record. They get slippery. They know there still are children being kept in detention on Christmas Island - although the kids are not technically in "detention", as their compounds are not scheduled detention centres.

In private, refugee advocates are savage. One told me: "Frankly, if you come up with a policy using naval repulsion of asylum seekers (as Mr Howard did) then you will stop boats. It violated basic norms of international protection, but the policy did have an impact.

"Now, no one has a policy. It's a false debate. The Government essentially has stuck with the same philosophy and tools as Mr Howard - keep out unauthorised arrivals at all costs and get our neighbours to intercept and warehouse people."

Serious refugee advocacy players, who think the suspension of processing applications is outrageous, think Mr Evans fundamentally is a decent bloke with compassionate, albeit strangled, views on asylum seekers.

They understand he and Mr Rudd are trying to negotiate an election. In pussy-footing around Mr Rudd and Mr Evans, refugee advocates are not representing the people they claim to represent.

For the public, that means a deep fog remains over the issue. Australia has responsibility under the 1951 UN convention on refugees and its 1967 protocol to assess claims for protection.

Mr Howard ignored his UN responsibilities by changing the Migration Act to create exclusion zones, where people could not claim access to full refugee rights. His stance showed the UN's weakness. The UN upheld 14 complaints against the previous government but there were no enforceable sanctions.

This Government has not revoked Mr Howard's exclusion zone.

It uses offshore processing on Christmas Island. The government claims it is not in breach of the UN convention by suspending refugee applications.

Mr Howard's cry that: "We will decide who comes to our country and the circumstances in which they come", now is Rudd's cry - at least until the election passes.

UNHCR concerned about Australia's asylum freeze

Agence France-Presse
Google Hosted News
Saturday April 17, 2010

Sydney -- The United Nations has raised concerns about Australia's decision to freeze asylum applications from Afghanistan and Sri Lanka, saying it could leave people in detention for prolonged periods.

Australia this month suspended applications from Afghans and Sri Lankans, saying the situation in their war-weary homelands had improved and fewer nationals of these countries would likely be considered refugees in the future.

"UNHCR is concerned that Australia's mandatory detention regime will apply to affected Sri Lankan and Afghan asylum-seekers for prolonged periods, without clear guidelines or effective judicial oversight," the UN agency said Friday.

It said that while there were situations in which the freezing of applications could be appropriate, the new system -- which has been criticised as discriminatory -- needed safeguards to protect asylum seekers.

Regional representative Richard Towle, who is the UNHCR's representative for Australia, New Zealand, Papua New Guinea and the Pacific, said the treatment of asylum seekers should not be punitive or discriminatory.

Hundreds of Sri Lankans and Afghans have made the perilous sea journey to Australia this year seeking asylum, many of them in wooden fishing boats departing from Indonesia and other Asian countries.

All illegal boat arrivals face mandatory detention in Australia until their visa claims are processed.

Under the new rules, asylum seekers from Afghanistan will be unable to apply for a visa for six months and Sri Lankans for three months and will have to remain in detention for this time.

The UNHCR has repeatedly said the detention of asylum seekers is inherently undesirable, and that many other countries host much larger numbers of refugees than Australia.

The UN statement came as Australian officials intercepted another vessel carrying boatpeople, bringing to 43 the number of such boats to have entered Australia so far this year.

UNHCR criticises the Rudd government

Stephen Johnson
April 16, 2010 5:06PM

The United Nations refugee agency has criticised the Rudd government for freezing the claims of Sri Lankan and Afghan asylum seekers as yet another unauthorised boat arrived in Australian waters.

HMAS Ararat intercepted a vessel with 82 passengers on board on Friday morning. The boat, found northeast of Christmas Island, takes to 43 the tally of asylum seeker vessels that have entered Australian waters in 2010.

Five asylum seeker boats have arrived in Australian waters in the week since the government declared Sri Lankan asylum seekers would have their claims frozen for three months while those from Afghanistan would have to wait six months.

The UN High Commissioner for Refugees (UNHCR) expressed concern at the government's policy changes.

"UNHCR is concerned that Australia's mandatory detention regime will apply to affected Sri Lankan and Afghan asylum seekers for prolonged periods, without clear guidelines or effective judicial oversight," the UN agency said in a statement.

Home Affairs Minister Brendan O'Connor, however, trumpeted the measures for taking account of 'evolving circumstances" in those countries.

"The Australian government believes that asylum seekers should only be granted the right to live in Australia if they are genuinely in need of protection," he said.

Opposition immigration spokesman Scott Morrison said the latest arrival showed Labor's policy changes were an election-year fix that would fail to solve the problem of illegal arrivals.

The coalition has also questioned the government's claim that Denmark had also delayed the processing for Sri Lankan asylum seekers.

"The attempted political fix by falsely implicating the government of Denmark risks causing serious offence," the opposition's foreign affairs spokeswoman Julie Bishop said.

Border Protection Command will take the latest arrivals, whose nationality is yet to be determined, to Christmas Island where they will undergo security, identity and health checks.

Norwegian Refugee Council: Australian asylum suspension is "inhumane"

Reuters Alertnet
16 Apr 2010 12:43:00 GMT
by Nita Bhalla

New Delhi (AlertNet) - Australia's decision to suspend processing asylum claims from Sri Lankans and Afghans is "inhumane" and will encourage other nations to turn away those seeking refuge from violence or persecution at home, aid workers said on Friday.

Prime Minister Kevin Rudd's government, under pressure in an election year to halt the arrival of boatpeople on the country's remote northwest coast, announced last week it was suspending new asylum claims from war-ravaged Afghanistan and Sri Lanka for six and three months respectively.

Officials said the policy was based on the improved security situation in both nations and was intended to "send a message" to people-smugglers who organise and profit from the ramshackle boats that bring the asylum seekers via countries like Indonesia.

But aid workers and human rights groups have slammed the decision, saying both Sri Lanka and Afghanistan remain hostile environments.

"The situation on the ground in both Afghanistan and Sri Lanka continues to be of grave concern," Elisabeth Rasmusson, Secretary General of the Norwegian Refugee Council (NRC), told AlertNet.

"Punishing individual asylum seekers - by detaining them rather than processing their claims - to fight people-smugglers is inhumane. This cannot be the strategy governments choose to deal with forced migration and refugees."

The arrival of hundreds of mostly Afghans and Sri Lankans, who pay large sums of money to make the perilous journey on rickety boats, has stoked public concern about Australia's border security laws in recent years. More than 1,600 asylum seekers arrived on the northwest coast in 2009.

Immigration Debate

Many Afghans are fleeing a conflict between insurgents and NATO-led security forces, while Sri Lankans fled in the final years of a 25-year-old civil war between Tamil separatists and government forces. Aid workers and rights activists say that despite the defeat of the Tamil Tigers in May last year, many Tamils still fear persecution.

"Any aid worker would agree that there are still reasons - legitimate security reasons - in both these countries to want to flee and seek refuge and protection," said one aid worker.

"Genuine asylum-seekers will be unfairly treated as a result of this decision."

Rights groups like Amnesty International and Human Rights Watch say the suspension contradicts the 1951 Refugee Convention which Australia has signed and which obliges countries to provide individuals with an opportunity to claim asylum and examine their refugee claims.

Others fear the message Australia is sending to other countries.

"New refugee arrivals are rarely popular, and governments in our region and around the world are often looking for new ways to minimise their obligations and push people back - directly or indirectly," said Alistair Gee, executive director of Act for Peace, the international aid agency of the National Council of Churches in Australia.

The U.N. refugee agency, UNHCR, says it is examining the possible effects of the Australian suspension on vulnerable asylum seekers in detention and their access to support services. Asylum seekers who arrive in Australian waters by boat are sent to Christmas Island pending examination of the claims. Those who arrive by plane or overstay their visas on the Australian mainland are not detained.

The agency says, like with other countries, it will continue to assess and review the security situation in Afghanistan and Sri Lanka. In the coming months, it plans to issue revised guidelines for assessing whether Sri Lankan asylum-seekers require international protection.

"UNHCR believes that all asylum-seekers and refugees should be treated humanely and given the opportunity to have any claims for protection fairly assessed," said UNHCR's spokeswoman Melissa Fleming.

Human Rights Watch: Australia Should Promptly Process All Refugee Claims

Relief Web
Human Rights Watch (HRW)
15 April 2010

Discriminatory Policy Against Afghans and Sri Lankans Violates International Law

(New York, April 15, 2010) - The Australian government should reverse its decision to suspend the processing of new asylum applications from Sri Lankan and Afghan nationals, Human Rights Watch said in a letter to Immigration Minister Chris Evans today.

Human Rights Watch said that the new policy, announced on April 8, 2010, fails to recognize the serious threats to security for certain groups in Afghanistan and Sri Lanka and violates Australia's obligations under international law not to discriminate in the treatment of refugees.

"The Australian government shouldn't cherry-pick among nationalities when deciding whose refugee claims get heard," said Elaine Pearson, deputy Asia director at Human Rights Watch. "Australia should be setting a positive example for refugee protection in the region, not undermining international standards."

The Australian government said it would suspend new asylum applications from Afghans for a period of six months and from Sri Lankans for a period of three months, in an apparent effort to deter unauthorized arrivals by boat.

Human Rights Watch said that the blanket suspension of all applications from nationals of specific countries is discriminatory under the 1951 Refugee Convention and its 1967 Protocol, to which Australia is a party. Even if human rights conditions have improved in a country of origin, Australia is still obligated to provide individuals with an opportunity to claim asylum and to examine their refugee claims.

In the cases of Afghanistan and Sri Lanka, however, Human Rights Watch's research shows that human rights conditions are far from stable or adequate, and that individuals and certain groups continue to face significant threats and to lack effective protection. For instance, women and girls, ethnic and religious minorities, media workers, civil society activists, opposition party members and supporters, and alleged militants may be at risk of persecution in Afghanistan and Sri Lanka.

In the letter, Human Rights Watch said the April 8 announcement about suspending asylum procedures alongside an announcement of enhanced measures to stop the crime of "people smuggling" implied criminality on the part of asylum seekers.

"Individuals under threat in Sri Lanka and Afghanistan sometimes have no choice but to turn to smugglers to escape persecution," Pearson said. "While smuggling is a crime, the Australian government seems to confuse smuggling with asylum, tarring the victims with the stigma of crimes committed against them."

Human Rights Watch noted that in 2008 the then-new Labor government initially made good on its election promises to protect the rights of refugees. But over the past two years, the government has changed course. Today, asylum seekers who arrive in Australia by boat remain subjected to mandatory detention, Christmas Island's detention centers are again filled with asylum seekers, and now newly arriving Afghan and Sri Lankan boat people, including children, will be made to endure the hardship of additional months of detention, regardless of the merits of their refugee claims.

"In the heat of an election year, the Rudd administration is choosing politically expedient refugee bashing over the principles of refugee protection," Pearson said. "It is a sorry reflection on Australian public opinion that the government thinks it must discriminate against Afghan and Sri Lankan refugees in the hope of winning votes."

Copyright, Human Rights Watch 350 Fifth Avenue, 34th Floor New York, NY 10118-3299 USA

Danish Refugee Appeals Board denies refugee ban on Tamils

Dennis Shanahan, Political editor
The Australian
April 16, 2010 12:00AM

The Danish government is concerned its position on Sri Lankan asylum-seekers is being misrepresented in Australia after Rudd government ministers wrongly claimed a "number of countries" had suspended refugee applications from Tamils.

Foreign Minister Stephen Smith and Immigration Minister Chris Evans have been unable to name any other countries that have suspended refugee applications from Sri Lankans, despite citing a problem "in Europe" and suspensions by a number of countries to justify Australia's decision to ban Tamil refugee applications for three months. Last night, Mr Smith's office continued to maintain other countries had decided to suspend refugee applications but said it could not name them.

Denmark is investigating reports claiming it had suspended refugee applications after statements by the Foreign Minister and Immigration Minister last Friday that Australia was not the only country to suspend Sri Lankan refugee applications.

Reports in the Fairfax press said Denmark was understood to have suspended refugee applications from Sri Lankans.

Last night, Mr Smith's office issued a statement that referred to the Danish Refugee Appeals Board as suspending appeals against repatriation from six Tamil families in April last year then extending the suspension of appeals to all Sri Lankans in June.

It also said the "basis and purpose of both suspensions was the same -- to take into account changing country circumstances". But the Danish Refugee Appeals Board only suspended the appeals process to prevent the families being returned to a dangerous situation.

After a report on conditions in Sri Lanka, the appeals board in Copenhagen dropped the suspension in December last year.

Danish sources said yesterday that the original suspension had been to achieve the opposite result of the Australian suspension and that was to keep Tamil families from being sent back.

Jon Jureidini: 'Dishonest' Rudd puts detainees mental health at risk

Thursday, 15 April 2010
by Dr Jon Jureidini, a child psychiatrist

Senator Chris Evans' quiet humanisation of the treatment of asylum seekers has always been at risk because it has come about without substantial changes to the laws that underpinned the extremities of the Howard/Ruddock regime. Now Evans' achievements have been undermined by the current prime minister's populist moves.

First, Kevin Rudd joined the tabloid chorus of condemnation of people smugglers. When people become strident in attacking people smugglers, there seems to be a sub-text that the people smuggled are not welcome.

It is no longer accepted for politicians to vilify asylum seekers, or plausible to claim that they are terrorists, and these "traders in human misery" are an alternative target.

Many smugglers may be exploitative and even murderous, but presumably there is a range of motivations -- wasn't Schindler a people smuggler? Arguably the private prison operators who administer the Christmas Island centre also profit from human misery.

Now the prime minister has suspended the processing of asylum seekers from Sri Lanka and Afghanistan. People will be detained for many months, although even those who are not found to be legitimate refugees have committed no crime by seeking asylum. Christmas Island is not Woomera; nevertheless prolonged detention creates the risk of serious mental illness.

Once a core of detainees has spent too long in detention, the atmosphere in the centre will deteriorate. We can predict a surge of protest, some of it self-destructive, giving way to despair. If this is allowed to persist, permanent damage will follow.

Many of us working in mental health saw first hand how refugees were harmed through prolonged detention. Documentation of this harm is freely available to government and community. The psychiatric label varied -- major depression, severe post-traumatic stress disorder, panic disorder -- but our inhumane treatment of asylum seekers was toxic for those we detained, for those commissioned to detain them and for our society as a whole.

Rudd's moves represent a return to the ethic of using detention as a deterrent, but seek to do it nicely. The announcement exemplifies the absurdity of claiming the middle ground on moral issues.

In the interests of reducing short-term political risks, the government has created an unsustainable false compromise, seeking to find a space where none exists between truly humane and ruthless.

Rudd lacks the honesty of Amanda Vanstone and Philip Ruddock when, as minister for immigration and attorney-general, they boasted that locking up children was justified because it deterred boat people.

It is hard to see an outcome of the current political direction that will not damage to the mental health of detainees, and further damage our well-being as a nation.

Dr Jon Jureidini is a child psychiatrist with 10 years of experience working with immigration detainees -- children, adults and families. He visited Baxter and Woomera many times.

Malcolm Fraser: Take politics out of border protection

The Age
Malcolm Fraser
April 15, 2010

The major parties should quietly agree on a humane refugee policy.

THE political debate over asylum seekers demeans Australia and severely damages our reputation as a compassionate and humane country. Both political parties are at fault. The opposition has unashamedly continued to play a race card as it did over Tampa. It has said time and again that the government has lost control of Australia's border protection knowing that that charge is false.

It is false because the number of asylum seekers - whether it be 4000 or 5000 a year - is not enough to alter the complexion of Australia or to challenge Australia's values. It is false because the number of asylum seekers who come here by air with falsified papers has always outnumbered the number who come by boat.

Those coming by air claim to be students or on a holiday visa and when they get here they say they want to claim asylum. It means they have come on false papers with a false declaration and yet they are not shut up in detention centres, they are not vilified, they wander around the streets of Australia until their claims are judged. And only about 30 per cent have been found to meet the criteria to be granted refugee status.

Those who arrive by air are unseen, they do not represent a political problem and therefore nobody does anything about it. But the boats are visible.

Of those who come by boat, when their claims are judged about 85 per cent and up to 90 per cent have been found to meet refugee criteria. So current policy discriminates heavily against those who have experienced greater hardship and are fleeing terror.

The government, given its due, initially attempted to introduce a more humane policy than that which was applied during the previous Liberal government.

But it has not as a government had the courage to fight the issue on the merits of the case - on the basis of what Australia ought to do to assist people in distress. It has been run off that course by an opposition that, without exception, has played politics with the issue.

I know there are people in the opposition who do not like its approach but who nevertheless go along with it. They believe it will win them votes. Thus the opposition plays upon and expands prejudice in Australia, and the government enters the competition to be tough and exclusive.

The government's response to political pressure has been to set aside the need for compassion, the need to argue the merits of the case under the Refugee Convention which then prime minister Robert Menzies signed more than half a century ago.

The government competes to say that it is as tough as the opposition and imposes a freeze on handling asylum claims from Sri Lanka and Afghanistan. The claims that conditions in those two countries have changed substantially are dubious.

The disagreements between the Western governments, which believe they are fighting for democracy in Afghanistan, and Afghan President Hamid Karzai have become extreme. It is becoming increasingly difficult to know who is friend and who is foe in Afghanistan itself. To suggest that the country is more settled, that it is more secure, and that therefore claims do not need to be assessed for several months, are spurious and designed to respond to political pressures at home that have been stirred to the maximum by an unethical opposition.

The great postwar migration, which changed the face of Australia and made this a much better country than it once was, could never have occurred if political parties had played politics with race or religion through the late 1940s to the 1970s. The race card began to emerge in the late '80s and '90s and Australia has been diminished as a consequence.

If governments or ministers say that this is not noticed overseas, they are ill-informed. From the late 1980s through the Hanson years, leading to Tampa, the issue has been noticed, it has been heard and people wonder if the old Australia, which pursued a White Australia policy, has ever really changed.

It is common to hear people say in Europe that they have had to deal with hundreds of thousands of asylum seekers a year - Europe had 286,680 asylum applications in 2009 - and they try to do so with a degree of humanity. Australia can't handle 4000 or 5000 a year with compassion and humanity.

If the government were courageous, it would stand up for what is right and what is just and challenge the opposition.

It would take advocacy, it would take fierce debate, but I believe the quality of Australians would shine through and Australians would support a humane policy.

The current debate demeans Australia and diminishes every one of us. Once race or religion emerge as political issues it is very hard to get back to a saner and quieter debate. The only way out of this dilemma for Australia is for border protection to be taken off the political agenda, for the political parties quietly and sensibly to establish a bipartisan, legal and humane policy that both major parties are prepared to support - otherwise Australia will move backwards into a darker age.

There is no sign that either the government or the opposition has been prepared to give that lead, yet in the 1970s and '80s Australia accommodated a very much larger number of refugees from Indochina, and Vietnam in particular. We should ask what has happened to Australia in the years since.

Malcolm Fraser was prime minister from 1975 to 1983.

Jane McAdam & Kerry Murphy: Refugee processing freeze breaches international law

Jane McAdam & Kerry Murphy
The Australian
April 14, 2010 12:00AM

On April 9, the ministers for Immigration, Foreign Affairs and Home Affairs announced that there would be no processing of new asylum claims by Sri Lankan nationals for three months and by Afghan nationals for six months. The rationale is that changing circumstances in these countries mean fewer people are likely to need protection as refugees. But this processing freeze raises serious legal concerns.

First, the fact the freeze is limited to Afghans and Sri Lankans arguably violates the non-discrimination provision of the Refugee Convention, which prevents discrimination on the basis of a refugee's country of origin. (Australia was a member of the six-member committee that drafted this provision.) The policy also breaches Australia's non-discrimination obligations under other important human rights treaties, which prohibit states from treating some groups of non-citizens differently unless doing so pursues a legitimate aim and the means used to achieve it are proportional. The stated aim of the processing freeze is to ensure "that Australia's refugee processing system continues to recognise those genuinely in need of our protection" or to make the Australian system responsive to "the evolving circumstances in these two countries". Arguably, neither of these reasons constitutes a legitimate aim and, in any event, the means by which they are being achieved is not proportional.

Second, even if there are changes on the ground, each case still needs to be assessed in light of those changes and an individual assessment made of the particular claims for protection. Afghanistan and Sri Lanka have experienced more than three decades of conflict, interspersed with short ceasefires and hopes of peace. While it is to be hoped that there will be peaceful resolutions, this is likely to take longer than three or six months, especially to ensure people's safety if returned.

The Refugee Convention already recognises countries may become safe for people to return to when changes there are sufficiently fundamental and durable (for each refugee). However, this does not mean initial refugee processing can be stalled until such stability has been achieved. To permit this would make a mockery of refugee protection. For example, if the situation remains unclear in three or six months, might processing be frozen again while Australia awaits a clearer picture of what is happening?

Countries have an obligation to determine upfront whether an asylum-seeker has a well-founded fear of persecution in the foreseeable future. Such an assessment is not done on probabilities but on what the High Court calls a "real chance test". It requires a thorough assessment of the political and social situation in a country, then a consideration of the claims made by the individual against that information. Even if a country's conditions have improved, it may still be unsafe for particular individuals to be returned. For example, there are credible reports that Tamils are being subjected to harassment and human rights violations in Sri Lanka, despite the end of the war.

The Australian government put a similar freeze on Afghan refugee cases in late 2001. At the time there was no announcement and lawyers were told processing was ongoing.

In reality, processing was suspended to see what would happen with the defeat of the Taliban. For a short while, there was a view that the situation in Afghanistan was solved. But this changed as the conflict reignited. Almost nine years later we have the same arguments being put: the Taliban is being defeated, it will be safe for people to return. A study of Afghan history should warn authorities away from such a presumption. Meanwhile, the war goes on, illustrating the danger of this process.

Third, freezing the assessment process leaves people in limbo. Mental health experts have extensively documented the long-lasting effects of indefinite detention and temporary protection visas. Suspending processing is a variation on this theme. It may also affect family members trying to escape persecution who are placed in danger by the delays.

Fourth, the processing freeze represents a complete about-face on the Rudd government's key immigration values, announced in July 2008, that detention that is "indefinite or otherwise arbitrary is not acceptable"; that holding asylum-seekers in immigration detention centres is "only to be used as a last resort and for the shortest practicable time"; and that people held in detention "will be treated fairly and reasonably within the law".

The effect of the freeze is to hold Sri Lankan and Afghan asylum-seekers in arbitrary detention. This is a clear breach of international human rights law and a violation for which the Australian government has been criticised on numerous occasions by the UN Human Rights Committee and other international and domestic bodies.

Fifth, the processing freeze breaches asylum-seekers' rights to due process under international law, including the right of access to a procedure within a reasonable time. Due process is essential to ensure that substantive rights can be accessed.

There are legitimate concerns about people travelling on sometimes unseaworthy boats to seek asylum. However, freezing processing does not affect the root causes of movement or deter people whose lives are at risk, in the same way the so-called Pacific solution did not address the fundamental reasons for flight, either. However frustrating it may be for governments, refugee solutions do not work to election timetables.

Jane McAdam is co-author of The Refugee in International Law (Oxford University Press). Kerry Murphy is an immigration law specialist and Jesuit Refugee Service Board member.

Andrew Bartlett: Refugee claim freeze: is Rudd a law unto himself?

Wednesday, 14 April 2010
by Andrew Bartlett

Since the federal government's announcement last week to suspend assessing refugee claims for people from Afghanistan and Sri Lanka, a range of people have speculated about whether this new policy breaches the law. Writing in today's Australian, refugee law experts Jane McAdam and Kerrie Murphy have no doubt it breaches international human rights law.

Deakin University law professor Mirko Bagaric also accused the Rudd government of flouting international law, although I think his claim that there is "no precedent of anything approaching a Western democracy doing anything as brutal to refugees as this" is a bit of an over-reach. Having the most brutal refugee policies is hardly a competition any civilised nation should be striving to win, but I'd have to Australia's current practices still falls clearly short of Italy's recent policy of forcing the people on refugee boats back to Libya, where blatant human rights abuses towards refugees are well documented.

Australia's breach of international law is most obvious in the fact that asylum seekers from the countries in question will be kept in detention for the entire duration that their claims are kept on ice -- a clear case of indefinite, arbitrary detention for people who are not accused of any crime or deemed to present any risk to the community.

Of course, the reality of prolonged mandatory detention for asylum seekers who arrive by boat is hardly new in Australia. But perhaps some have forgotten the legacy of the Howard era, which had the effect of providing a large pile of medical evidence of the enormous human damage caused by prolonged detention -- especially when it is combined with uncertainty about how long the detention would continue and what would happen to the person at the end of that period. The freeze on assessments announced by the government creates a very high risk that this level of harm will be inflicted again on innocent people -- heightened by the fact that these asylum seekers will be in an isolated high security, highly crowded detention facility.

But while these and other breaches of international law are obvious, it is less clear if the new policy involves a breach in Australian law. This is particularly so because of the continuation of the Howard-era law excising Christmas Island (and all other islands across northern Australia) from the Migration Zone for people wishing to lodge a refugee claim. This means the legal options of asylum seekers in those areas are seriously constrained -- which is one reason why the current government has retained it.

A small mercy on this occasion is that asylum seekers on Christmas Island who are subject to the freeze are likely to still be able to access legal advice and other support, unlike those kept in virtual isolation for years on Nauru under the previous government.

Refugee advocates considering possible legal avenues also need to consider whether a low percentage court action would potentially be something the government would be quite happy to see. Taking on the lawyers and the so-called "bleeding hearts" was a favourite pastime of Howard government ministers, with regular insinuations that lawyers running such cases were somehow making large amounts of money out of such cases (which is the exact opposite of the truth), or blaming asylum seekers for costing the taxpayer lots of money. As we also saw in the Howard era, even a win in the courts for a refugee would provide a chance for the government to announce it was being forced to bring in even tougher laws -- something it clearly revelled in doing.

It is no certainty that this latest move by the government will work for them politically. It will certainly alienate a constituency who believed Labor would have greater respect for human rights, although this may not trouble Rudd too much on the expectation that compulsory preferential voting would still bring most of those votes back to him ahead of the Liberals.

But if the boats keep coming regardless of the freeze -- and we will know soon enough if this is the case -- it will funnel more and more people into a Christmas Island that is already at bursting point, with no prospect of those people being able to create space for others any time soon. As the centre fills with people with "frozen" claims, the government will no longer be able to use its previous practice of creating some space by moving asylum claimants out whose claims are near finalisation.

Combine this with the likelihood of heightened tensions, as the mental health damage of prolonged detention and uncertainty mounts, and things could get very unpleasant -- not just for the refugees but for the government. Whatever else one may think about the asylum policies the Labor government had adopted upon its election, Australians would have reasonably assumed that the sort of detention centre protests and upheavals we saw a decade ago at places such as Woomera were a thing of the past.

Whether such an eventuality would be politically bad for Rudd is an open question, but it would certainly be very bad on a human scale for the refugees concerned. In all the talk about the politics and the legality of the government's actions, it is important we don't forget the innocent and vulnerable people caught in the middle of this.

Rudd rebuked over 'contentious' refugee stance

The Age
Yuko Narushima
April 14, 2010

Kevin Rudd's suspension of refugee processing is legally contentious and flies in the face of his ambition to have Australia taken seriously on the international stage, a law professor and former diplomat say.

The Prime Minister trumpeted the importance of international law when it was politically advantageous but was quick to flout it under election nerves, the Deakin University professor of law, Mirko Bagaric, said.

''This is probably the most repugnant refugee policy of any Western country that is a party to the international refugee convention. I know of no precedent of anything approaching a Western democracy doing anything as brutal to refugees as this,'' Professor Bagaric said.

Mr Rudd is lobbying for an Australian seat on the UN Security Council, has considered a human rights charter and attacked the previous government for failing to sign up to the international Kyoto Protocol on climate change.

''Ostensibly, at least, the Rudd Government really covets and values international law,'' Professor Bagaric said.

Last week, the government announced it would stall processing for all asylum seekers from Sri Lanka and Afghanistan for between three and six months, resting the decision on a pending UNHCR report.

The refugee organisation has since rejected Labor's claims that other countries had frozen asylum claims from Sri Lanka. People fleeing Sri Lanka and Afghanistan last year made up 79 per cent of all boat arrivals to Australia.

Over that period, 854 Afghans and 112 Sri Lankans were found by the immigration department to be owed Australia's protection.

Yesterday, Foreign Affairs Minister Stephen Smith said it was a matter for each country to announce its own refugee processing arrangements.

''A number of countries have introduced suspensions for the processing of Sri Lankan asylum seekers,'' his spokeswoman said.

The decision to suspend processing was made using security information from government, multilateral agencies and non-governmental sources, she said.

''The bulk of this information is not publicly available,'' she said.

A former diplomat posted to Sri Lanka and Afghanistan, Bruce Haigh, said Australia's freeze was a shield against opposition criticism of the government's border protection policies.

''Rudd has a glass jaw,'' he said. ''He has been prepared to trash his quest for the UN Security Council just to make sure he is re-elected. The people in Sri Lanka are saying the assessments the Australian government is making are nonsense.''

Denmark is also believed to have stopped processing refugees from Sri Lanka.

The Immigration Minister, Chris Evans, said the freeze did not contravene Australia's international obligations to refugees.

''It doesn't diminish people's rights in any way,'' his spokeswoman said yesterday. ''This is simply a suspension of the processing of their applications.''

Psychiatrist Jon Jureidini, who has worked with refugees for more than a decade, said delays would heighten anxiety among Afghan and Sri Lankan asylum seekers.

''We know that one of the toxic factors for people in detention under the previous regime was the uncertainty about their future,'' he said. ''Once you build up a core of people who have spent a very long time in detention, that seems to be a particularly dangerous situation.''

Greg Barns: Arbiter of asylum claims casts doubt on Rudd's application freeze

Tuesday, 13 April 2010
by Greg Barns

The Rudd government's decision to freeze asylum applications for Sri Lankans and Afghanistan nationals is, it says, based on the view that political and social conditions in both countries are improving. But a recent decision by the Refugee Review Tribunal (the RRT), the independent arbiter of asylum claims, casts some doubt on that claim.

In a decision handed down on March 11 in Sydney, RRT member Christine Long found that a Sri Lankan woman (who, like all applicants in migration cases, is not identified by name) who is a Tamil was a "person to whom Australia has protection obligations under the Refugees Convention".

The woman had fled Sri Lanka after being accused of supporting the Tamil Tigers and was told by paramilitaries never to come back to Sri Lanka. She and her husband gave evidence to the RRT about the risks of returning to Sri Lanka.

The woman told the RRT that she and her husband are on a wanted list drawn up by paramilitaries. When asked by the RRT why she feared being harmed if she returned to Sri Lanka today, the woman said that "...they will kill her if she goes back because she has been detained and beaten and this will come to their attention if she goes back. She said she is branded as a Tiger".

The woman's husband told the RRT that in "Sri Lanka paramilitaries are everywhere. Those paramilitaries were once with the Tigers and then they left the movement". He told the RRT "paramilitaries are stationed to catch Tigers but they abduct Tamils and extort money".

Long found that the woman "has a well-founded fear of being persecuted for reasons of her imputed political opinion and her race if she returns to her country now or in the reasonably foreseeable future".

Of course, the RRT's view about Sri Lanka in this case has to be seen in the context of the woman and her husband's personal circumstances. What this decision also shows is that it is essential that every Sri Lankan person who makes a claim for refugee protection in Australia should be entitled to have their claim fairly assessed.

The RRT's decision also suggests that foreign minister Stephen Smith's claim over the weekend that conditions are improving in Sri Lanka is a sweeping generalisation that ignores the reality for each person.

This is not the only case of verbal overreach by the Rudd government on this issue. Smith and Immigration Minister Chris Evans claimed last Friday that other countries had also begun to suspend processing asylum seeker claims from Sri Lanka and Afghanistan.

Not so, says the UNHCR regional chief Richard Towle, who The Australian quotes this morning as saying, "I am not aware of any other countries in the industrialised world which have suspensions in place for asylum claims for people from these countries."

Rudd Caves In On Refugees

New Matilda
12 Apr 2010
By Ben Eltham

As of last week, Labor has turned its back on refugees from Sri Lanka and Afghanistan. The decision is a cynical betrayal of Labor's progressive principles, writes Ben Eltham

Remember the phrase "Don't throw the 'fair go' out the back window"? As Opposition Leader, Rudd repeated it ad nauseum in the run-up to the 2007 federal election. While Kevin07 was a self-avowed fiscal conservative, he was also a believer in a fairer, more compassionate Australia.

Or so he told us.

Indeed, one of his very first statements as Prime Minister-elect was that he would honour the "spirit and letter" of the UN Convention on Refugees.

That promise has now gone by the board, along with the so-called "seven principles" of immigration policy advanced by Immigration Minister Chris Evans in 2008. Some of those principles included: that detention would be for "the shortest practicable time" and used only as a last resort; that "people in detention will be treated fairly and reasonably within the law"; and that "detention that is indefinite or otherwise arbitrary is not acceptable".

But what could be more "arbitrary" than refusing to process refugee applications from two of the most strife-torn nations in the world? How "fair" and "reasonable" is that?

According to the Government's media release, "The situations in both Sri Lanka and Afghanistan are evolving." If so, no one appears to have told the Australian military, which is still fighting a war in Afghanistan, or the Department of Foreign Affairs, which maintains a strong travel warning for Australians going there and advises people to reconsider travel to Sri Lanka.

For more than two years, Labor has argued that "push" factors like violence and conflict in foreign lands are the cause of refugee flows. The Opposition has argued that Labor has gone soft on refugees, and that this favourable treatment is "pulling" them to our shores. With its changes on the weekend, the Government has effectively conceded this argument. Tony Abbott and Scott Morrison must be delighted. The boats, of course, will keep coming, and while they do, Abbott and Morrison will be able to keep talking about Labor's failed policy.

What is with the Australian hysteria about boats? We live on an island continent that has only ever been successfully invaded once -- by the British jailers who eventually founded this nation. But throughout colonial history, and again after Federation in 1901, Australian politics has retained a deep paranoia about non-white migration, particularly by sea.

How else to explain the sustained but absurd coverage of small numbers of boat arrivals by our national media, particular the Murdoch tabloid press? It's worth pointing out (yet again) that arrivals by boat represent only a tiny proportion of those arriving on our shores. Most immigrants, including most asylum seekers, come by plane. But, for reasons entirely related to deep-seated atavism and xenophobia, it is the boats that grab the headlines.

As the "boat count" this year has spiraled past 100, the Daily Telegraph and the Herald-Sun have enthusiastically kept score, hungrily feeding on the Coalition's talking points about the Rudd Government "losing control" of border security in articles like this one.

Even the quickest glance at the facts reminds us how ridiculous this claim is. The boats reaching Australia are small Indonesian fishing boats, generally carrying no more than 50 or so asylum seekers at a time. They generally sail for Christmas Island, Australia's territorial outpost in the Timor Sea. The Australian Government and Navy aggressively patrols the seas around Ashmore Reef and there is a massive detention facility on Christmas Island. The fact that unarmed boats reach Australian waters does not mean our borders are not secured. A few thousand refugees in a year is not a problem that's "out of control".

Australia is a wealthy, industrialised nation blessed with vast natural resources and one of the strongest economies in the developed world. The idea that we can't afford to process refugees is laughable. The only real reason this is an issue is that refugees are unpopular in certain parts of the electorate. And, spooked by the climate of fear whipped up by the tabloid press and the Opposition, the Government has buckled.

As I pointed out in March, the Rudd Government has been worried about the number of boats arriving for some time now. In that article, I predicted the Coalition's line of attack on border security would push Labor to the right. But even I am surprised at how quickly that has happened.

And so, in a cowardly decision, the Rudd Government has decided that claims from Sri Lankan and Afghani asylum seekers "will not be considered" for the next three to six months ... in other words, until after the federal election.

This is not compassionate. It may not even be legal. But it is expedient. And in an election year, that is what counts.

This back-flip is nothing less than a broken promise -- a policy abandoned for the most cynical reasons of political pressure. It will be difficult to take any future Labor promises to protect the "inherent dignity of the human person" seriously. It appears that, for some asylum seekers, Kevin Rudd's "fair go" was thrown out the back door on or around the time that the 107th "suspected illegal entry" boat entered Australian waters this year.

Make no mistake, this is about votes in marginal seats. Labor doesn't need a focus group to tell it that asylum seekers are unpopular. Nor should we sheet home all the blame to a ruthless Opposition or cynical News Limited press. There is in fact a genuine fear of immigrants and refugees in many parts of Australian society, and to pretend otherwise simply blinds us to the reality of racism in our public life. Just ask an Indian cab driver.

As Paul Kelly wrote in The Australian on the weekend, Labor has form when it comes to xenophobic refugee policy. Historically, the party was a strong supporter of the White Australia policy. It was the Hawke government that first introduced mandatory detention for refugees, and built the Port Hedland detention centre. Under Kim Beazley, Labor supported many of John Howard's most regressive changes to the Migration Act.

Kelly says it well when he writes, "Here is the authentic face of the Labor Party under pressure. This is the Labor Party that created the detention system in the 1990s for men, women and children. This is Rudd Labor now extending the detention period."

For those who hoped for a more humane and compassionate government than John Howard's, Kevin Rudd's administration is increasingly disappointing. Rather than wind back the Northern Territory Emergency Response, Rudd and Jenny Macklin have extended it. Rather than get out of the war in Afghanistan, Rudd has recommitted to it. And rather than ending the mandatory detention of refugees, his Government continues to arbitrarily jail them.

Policy on Sri Lankans ignores the dangers people face

The Age
Matt Wade
April 13, 2010

Anyone perceived to be critical of the Colombo government is in peril.

THE treatment of journalists is one bellwether of the human rights climate in Sri Lanka. But the Australian Government doesn't seem to be paying attention. It's decision to decision to suspend the claims of Sri Lankans seeking political asylum is at odds with the plight of media workers there.

Despite the end to the country's civil war 10 months ago, voicing a critical opinion in Sri Lanka remains very dangerous. In recent weeks, several journalists have fled the country fearing for their lives. They have joined scores of others living in exile because they feel it is too dangerous to report independently in their country. These include several Sri Lankan journalists I have encountered while reporting there over the past 18 months.

One media activist who worked for me as an interpreter in January has since fled Sri Lanka with his wife, also a journalist, and their small child. He found himself in a ''life-threat situation'' after the presidential elections and decided it was time to leave. The family is now in a European country that still accepts Sri Lankan asylum seekers. ''I have no idea when will I be able to come back home,'' he says.

Last year, a professional photographer who had taken pictures for The Age escaped to India after being accused of sympathising with the Tamil Tigers. Poddala Jayantha, editor of the Sinhalese newspaper Silumina, which has published stories critical of the government, was abducted and severely beaten last June. He was left permanently disabled by the attack. Despite his injuries, Jayantha remained in Sri Lanka for more than six months hoping to continue his journalistic career, but gave up recently and left the country. Last week, another long-time journalist activist left the country in fear for his life.

Meanwhile, there is grave concern for the wellbeing of journalist Prageeth Eknaligoda, who has been missing since the evening of January 24.

According to some, the situation has become worse since recent elections.

The editor of the Sinhalese-language Lanka Irida Sangrahaya newspaper, Chandana Sirimalwatte, was arrested soon after Sri Lanka's presidential poll in January and held for several weeks. His newspaper, which is affiliated with an opposition party, has since reopened but with restrictions.

Sirimalwatte fears media freedoms will deteriorate further following this month's parliamentary elections, which were won convincingly by the coalition led by President Mahinda Rajapaksa.

''We are hoping for things to get better but we are ready for the worst,'' he told The Age on Sunday.

Last month, the International Federation of Journalists wrote to the President raising concerns about a list of journalists, human rights campaigners and other prominent individuals in Sri Lanka that was reportedly compiled and possibly circulated by state intelligence agencies.

The federation's Deborah Muir says the climate of intimidation in Sri Lanka now is as bad as it has ever been for journalists, and self-censorship rules the media across the island. ''For the Australian or other governments to say that there is no problem in Sri Lanka, and to accept the claims of a regime notorious for its efforts to undermine independent media voices and to stamp out free expression, appears to completely overlook the reality for people in Sri Lanka,'' she said.

''How can anyone claim the situation is acceptable when just last week a long-time journalist activist finally had to flee the country in fear for his life?

''We fear more may be forced out in the next weeks or months as the regime cements its grip and seeks revenge on those it deems to be its enemies.''

Matt Wade is South Asia correspondent.

Pakistani officials ridicule Rudd's visa rethink

Amanda Hodge, Islamabad
The Australian
April 13, 2010 12:00AM

The Rudd government's claim that Afghanistan's Hazara population is no longer at risk has been rejected in Pakistan.

Pakistani immigration and human rights officials say Hazaras face life-threatening persecution on both sides of the border.

A senior official with the human trafficking arm of the Federal Investigation Agency said yesterday Hazaras were regularly targeted in Pakistan's Balochistan province, where most of its 500,000 Afghan Hazara refugees were based.

The official also warned that suspending visa applications for six months would have little effect on numbers of Hazara asylum-seekers, who typically planned and saved for three or four years before making the trip and then spent at least six months journeying to their final destination.

"Another six months will make no difference in that cycle," the official said.

"These are Persian-speaking, educated, hard-working Afghans that are running away after four or five years of thinking about it."

Immigration Minister Chris Evans said last Friday "the Taliban's fall, durable security in parts of the country, and constitutional and legal reform to protect minorities' rights have improved the circumstances of Afghanistan's minorities, including Afghan Hazaras".

But asked if the security situation for Hazaras in Afghanistan had improved sufficiently for them to return, the FIA official replied: "No, there's no basis for saying this."

"Right now they're being persecuted on both sides of the border. In Quetta (the capital of Balochistan), eight to 10 Hazaras are being murdered every week. If that's happening just in Quetta, magnify this problem all the way to central Afghanistan."

UNHCR Pakistan spokesman Killian Kleinschmidt said he had discussed the persecution of Hazaras in Balochistan with an Australian delegation, ahead of the government announcing the six month suspension on Friday.

Laurent Saillard, the Kabul-based director for the Agency Co-ordinating Body for Afghan Relief, said while conditions had improved for Hazaras under the Karzai regime, there was no basis for suspending the visas.

"It's fantastic the capacity of our governments -- and not just the Australian government -- to convince themselves of their own propaganda," Mr Saillard said.

Dr Michelle Foster: Refugee obligations violated

The Rudd government has turned its back on our responsibility to treat asylum seekers impartially.

The Age
By Michelle Foster
April 13, 2010

Since its election, the Rudd government had - until last week - distanced itself from the refugee policies of the Howard government and emphasised its new, more humane approach to refugee protection. One of the central themes of the new discourse, particularly from Immigration Minister Chris Evans, has been the fact that the policies of the previous government ''brought great shame on Australia'', such that ''Australia's international reputation was tarnished by the way the previous government sought to demonise refugees for its own domestic political purposes''.

In particular, Evans has sought to emphasise that compliance with our international obligations, particularly under the 1951 Refugee Convention, and accepting at least some responsibility for protecting the world's 10 million refugees are key methods by which we may repair the ''enormous damage'' done to our international reputation. So, how do the changes announced last week measure up to these laudable goals? What implications do they have for our international obligations?

On Friday, Evans, with Foreign Minister Stephen Smith and Home Affairs Minister Brendan O'Connor, announced that ''effective immediately'', the Australian government had suspended the processing of new asylum applications from Sri Lanka and Afghanistan. This radical departure in policy was justified on the basis of ''evolving circumstances'' and was said to ensure that only those ''genuinely in need'' would be granted protection.

The first striking feature of this is that while it could be said that the situation in many countries is ''evolving'' (is any political and social system static?), only asylum seekers from two countries have been singled out. This appears to be in direct contravention of Article 3 of the Refugee Convention, which requires Australia to apply the convention ''without discrimination as to race, religion or country of origin'', as well as the principle of non-discrimination contained in other international human rights treaties to which Australia is a party.

It is difficult to imagine a more blatant violation of the norm of non-discrimination.

Second, the rationale for the suspension is misplaced. The government says that status determination needs to be suspended not because conditions have already changed but because ''in the future, more asylum claims from Sri Lanka and Afghanistan will be refused''.

On this logic, Australia could refuse to consider all refugee applications from all countries because it is always possible that country conditions may improve - a disingenuous position that would entirely undermine and repudiate our obligation to imple-ment the Refugee Convention in good faith.

In any event, the language contained in the press release about the decision undermines the logic of the government's position. It mentions ''hopes for further improvement and stabilisation in conditions'' in Sri Lanka - an aspiration which is no answer to the immediate protection needs of Sri Lankan asylum seekers and in no way supports the notion that such refugees are not currently ''genuinely in need of protection''. Indeed, while the Refugee Convention recognises that ''changed circumstances'' in a person's country of origin may mean that a person has ceased to be a refugee, it is well accepted that such changes need to be major, profound or substantial and, most importantly, durable. It is highly unlikely that changes occurring in a three to six-month time frame would meet this high threshold.

Third, reliance on the possibility of future United Nations High Commisioner for Refugees guidelines is also a misguided justification for this policy. Even if new guidelines are issued in the future with respect to these countries, they are not determinative. The onus remains on Australia as a party to the Refugee Convention to undertake its own assessment of each asylum seeker's claim in order to ensure that it does not return anyone to a situation of persecution. Such an assessment is routinely undertaken in light of a wide range of sources derived from a variety of government, non-government and UN organisations and bodies. None of these sources purports to displace a state's responsibility to undertake its own individual refugee status determination, and Australia cannot rely on such sources to abdicate its obligations in this regard. Country information and guidelines are of a general nature and cannot provide a definitive answer to whether a particular individual in that country has a well-founded fear of being persecuted.

Finally, the government's announcement seriously calls into question its commitment to moving away from prolonged immigration detention for asylum seekers, especially in the case of children. Mandatory detention was one of the most infamous and damaging aspects of the former government's immigration policy, in part due to the well-documented psychological and physical impact on detainees. In previous policy speeches, Evans has decried ''the notion that dehumanising and punishing unauthorised arrivals with long-term detention is an effective or civilised response''.

Mandatory detention has also been one of the policies most vehemently criticised by the international community. The UN Human Rights Council found that it violates the prohibition on arbitrary detention contained in Article 9 of the International Covenant on Civil and Political Rights. The suspension of claims and consequent detention of Sri Lankans and Afghans under this new approach is indeed arbitrary: it is discriminatory, applied without regard to individual circumstances, and is not open to review. Further, it is clearly indefinite since there is no guarantee that status determination will resume at the conclusion of the moratorium.

To those who may attempt to justify such harsh measures as necessary to ''deter'' future asylum seekers, it is worth remembering that those who travel to Australia without prior authorisation in order to seek asylum are not in violation of any domestic or international law. And, as the government has frequently reminded us, Australia receives an extremely low number of asylum applications compared with the rest of the world. In 2009, Australia received less than 2 per cent of all applications for asylum in the industrialised world.

This unprecedented and unjustifiable suspension violates our international obligations and represents a return to the abhorrent policies of the past. It must therefore be immediately lifted.

Dr Michelle Foster is director of the research program in international refugee law at Melbourne Law School.