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| by Laksiri Fernando
( August 20, 2014, Sydney, Sri Lanka Guardian) There were two ourt hearings in Austra!ia and Sri
Lanka on !ast Thursday (14 August) and Friday (1" August) res#eti$e!y that drew our attention to the
!ega!ity or i!!ega!ity o% re%ou!e&ent (sending bak) o% asy!u& seekers to the ountries that they ha$e
%!ed %ro&' (one is on!usi$e yet' This is in a bakground o% new re%ugee in%!u) in *ount Sin+ar and
Turkish border (nu&ber not on%ir&ed) %ro& the re#rehensib!e #erseution by the ,s!a&i State (,S) or
new on%!its in ,ra-'
Sine the end o% the .or!d .ar ,,, the re%ugee nu&bers ha$e inreased %ro& 1 &i!!ion to o$er "1
&i!!ion now' These nu&bers in!ude the /interna! re%ugees0 that the 1(234 has ounted and show the
gra$ity o% the situation arising out o% &ain!y interna! on%!its5 ethni, re!igious or #o!itia!' Sri Lanka
has so %ar been a soure o% re%ugees, and now it a##ears that it has a!so beo&e a rei#ient as we!!'
6erha#s this is not the %irst ti&e that Sri Lanka bea&e a rei#ient ountry'
7idn0t 8i+aya and his retinue o&e to 8edda ountry as re%ugees9 ,% we re%er to &ore &odern history,
:rabi 6asha de%inite!y was a re%ugee in 3ey!on with se$en others at the end o% the 1;th entury' 2enry
6eter Tho&#son (The <att!e %or Singa#ore), re%ers to thousands o% =uro#eans e$auated to 3ey!on
when Singa#ore was bo&bed by the >a#anese in 1;41' 6atrik 6eeb!es (The 6!antation Ta&i!s o%
3ey!on, #'4?) says that beause o% the %a&ine in South ,ndia, &any Ta&i!s were brought to 3ey!on as
(eono&i9) re%ugees' 2' 2' Austin who wrote his e)#erienes as the #erson in harge o% The <a-ubah
4e%ugee 3a&# (1;20) indiated that so&e o% the re%ugees were sent to 3ey!on' <y the way this a&#
was in ,ra- and so&e o% the Sri Lankans were assisting the a&# as hea!th and sanitary workers' These
are so&e g!i&#ses and not a history o% the &atter'
1"@ Ta&i! 4e%ugees in Austra!ia
, ha$e a!ready written on the sub+et o% reent Ta&i! re%ugees in Austra!ia (ATa&i! 4e%ugees, *21@ and
6a!estine,B 2" >u!y 2014), with so&e other &atters, whih aroused so&e ontro$ersy' The boat
originated in 6ondiherry, ,ndia, ear!y >une and was intere#ted by the Austra!ian border #etro! o%%
3hrist&as ,s!and on 2; >u!y' This was beyond Austra!ian territoria! borders' A!! were be!ie$ed to be
Ta&i!s %ro& Sri Lanka, with C@ hi!dren and 41 wo&en'
<y the ti&e o% &y #re$ious writing they were ke#t in an Austra!ian 3usto&s $esse!, :eani 6rotetor'
Then they were brought to 6erth, .estern Austra!ia, on the understanding that ,ndia &ight take the&
bak' Sri Lanka had a!ready re%used to take the& bak on the #re&ise that the boat originated in ,ndia
and not Sri Lanka' The ,ndian onsu!ar o%%iers wanted to s#eak to the re%ugees, but they in turn
re%used to ta!k' ,ndia was re!utant to take the& bak without in$estigating their identities and
bakground' Then it bea&e so!e!y Austra!ia0s baby' Therea%ter they were sent to (auru %or o%%shore
#roessing or detention in ear!y August, a deision whih has beo&e !ega!!y and soia!!y
,t is understandab!e that re%ugee in%!u) is a #rob!e& %or any ountry' There has been a onsiderab!e
re%ugee in%!ow in Austra!ia during the !ast deade' :%%shore asy!u& a##!iations %or e)a&#!e ha$e
inreased %ro& ",020 in 200C to 2?,42@ in 101C' <oat arri$a!s in ontrast to #!ane arri$a!s ha$e a!so
been dra&ati during the sa&e #eriod' 1ndoubted!y #eo#!e s&ugg!ers were in$o!$ed in &any o% these
ases' .hi!e the #!ane arri$a!s bare!y doub!ed (%ro& 4,;?0 to D,C0D), the boat arri$a!s were &ore than
C00 ti&es (%ro& ?0 to 1D,11;) during the sa&e #eriod' The !ast %our years o% this #eriod were
e)e#tiona!!y high #artiu!ar!y in ter&s o% boat arri$a!s or a##!iations' There were 40C boats in 2012EC
in ontrast to on!y C in 2002EC'
2owe$er, there are ertain internationa! !ega! regi&es to be %o!!owed in the ase o% re%ugees as in the
ase o% hu&an rights' *ore than the !ega!ity, there is an e&#athy re-uired as it is a tragi hu&an
4e%ugee #rob!e& is a!so a hu&an rights #rob!e&' .hen the 2igh 3ourt &et on !ast Thursday, a senior
Austra!ian +udge has -uestioned /whether the Austra!ian go$ern&ent has authority %irst to detain
asy!u& seekers on the high seas0 and seond /to send the& to another ountry o%%shore, a%ter they were
brought to Austra!ia,0 whate$er the reason' The go$ern&ent has to answer these -uestions in a week0s
(ow the new arri$a!s are ke#t at a detention entre on the tiny South 6ai%i is!and o% (auru' ,t is
be!ie$ed that as the boat #eo#!e were brought to Austra!ia, they are entit!ed to ertain rights as any
asy!u& seeker arri$ing in Austra!ia' These are de%ined by the A3on$ention 4e!ating to the Status o%
4e%ugeesB (1;"1) and the A6rotoo! 4e!ating to the Status o% 4e%ugeesB (1;?@)' ,n res#et o% the
#re$ious asy!u& seekers, as the go$ern&ent has now taken a deision to re!ease or absorb the hi!dren
into the o&&unity, who were so %ar ke#t in detention a&#s within Austra!ia, so&e ha$e e)#ressed the
o#inion that the sa&e deision shou!d a##!y to the hi!dren o% the new arri$a!s o% 1"@ Ta&i! re%ugees
by boat and others in $arious detention entres o%%shore'
,n Sri Lanka 3ourt o% A##ea!0s #re!i&inary deision on !ast Friday a!so was on the sa&e !ines' The
3ourt sus#ended the go$ern&ent deision to send bak 6akistani asy!u& seekers who are &ain!y %ro&
3hristian or Shia o&&unities %ro& Aha&andi region' The #etitioner, *s' Ani!a ,&ran, in her
a##!iation has to!d the ourt that 6akistani authorities #erseute 3hristians and Shia *us!i&s in that
region and they had arri$ed in Sri Lanka seeking #rotetion' There are howe$er %ears that so&e o% the
#o!itia! ati$ists %ro& 6akistan ha$e a!so o&e to Sri Lanka as re%ugees with the intention o% !aunhing
terrorist attaks on ,ndia' 1nder the 4e%ugee 3on$ention, no ountry is ob!iged to on%er asy!u& to
/terrorists0 or #eo#!e with a ri&ina! reord'
6akistani 4e%ugees in Sri Lanka
As the a$ai!ab!e in%or&ation re$ea!s, Sri Lanka has a!ready de#orted o$er 100 and a si&i!ar nu&ber
sti!! re&ains under detention or e$ading arrest' As the !awyers and the 1(234 ha$e argued /Sri Lanka
is in breah o% its ob!igations under internationa! !aw onerning the #rini#!e o% no %ored returns or
non re%ou!e&ent'0 2owe$er, Sri Lanka is not a #arty to the 4e%ugee 3on$ention whi!e Austra!ia is'
(e$erthe!ess the argu&ent goes that &ain #rini#!es o% the re%ugee on$ention now has beo&e #art o%
the internationa! usto&ary !aw and Sri Lanka is #arty to &any onurrent hu&an rights on$entions
that u#ho!d the rights o% the asy!u& seekers' Arti!e 14 o% the 1ni$ersa! 7e!aration o% 2u&an 4ights
de!ares the %o!!owing'
A=$eryone has the right to seek and to en+oy in other ountries asy!u& %ro& #erseution'B
This right &ay not be in$oked howe$er Ain the ase o% #roseutions genuine!y arising %ro& nonF
#o!itia! ri&es or ats ontrary to the #ur#oses and #rini#!es o% the 1nited (ations'B
,t is understandab!e that any re%ugee in%!u) howe$er s&a!! &ight be #erei$ed a #rob!e& %or a s&a!!
ountry !ike Sri Lanka &ore than Austra!ia' Sri Lanka has o&e out o% a !ong drawn out war and the
situation is sti!! %ragi!e' The re!igious tensions in the ountry is no better than 6akistan' 2owe$er, Sri
Lanka a!so shou!d share a burden o% re%ugee #rob!e& as &any ountries ha$e been sharing' ,ndia %or
e)a&#!e was generous enough to entertain &ore than 100,000 re%ugees %ro& Sri Lanka a%ter the ethni
riots in >u!y 1;DC' There shou!d be e&#athy on re%ugees whate$er the ountry they originate %ro&, or
whate$er the ountry they arri$e at' There shou!d be &ore internationa! oo#eration to ease and so!$e
There were ti&es that the go$ern&ents and #eo#!e in Sri Lanka were &ore sensiti$e and generous than
today to the re%ugee issue' , was instru&enta! in &aking arrange&ents in 1;D", as Seretary %or
AsiaE6ai%i o% the .or!d 1ni$ersity Ser$ie (.1S), in bringing 14 (a&ibian re%ugee wo&en to Sri
Lanka %or =ng!ish teaher training under the 3o&&onwea!th Seretariat0s tehnia! assistane' The
oo#eration o% the go$ern&ent as we!! as the $o!untary organiGations was #raiseworthy in this
endea$our' ,t is true that those (a&ibian students were not seeking #er&anent re%uge in Sri Lanka' ,t
&ight not be the ase e$en on the #art o% the 6akistani asy!u& seekers who are now in 3o!o&bo' They
&ay need so&e breathing s#ae unti! 1(234 or any other organiGation &akes so&e #er&anent
, a!so don0t see &uh #rob!e& e$en i% so&e o% the& wish to sett!e and #artii#ate and ontribute to the
Sri Lankan soiety' .e are !i$ing in a g!oba! soiety where inreasing!y #eo#!e wish to &o$e around
and sett!e in ountries that they wish to sett!e whether they are #erseuted in their ho&e ountries or
not' 2owe$er, re%ugee #rob!e& is one that ountries shou!d try and %ind so!utions both in a #ratia!
and a hu&anitarian %ashion through &utua! internationa! oo#eration'
Let &e turn to the 4e%ugee 3on$ention at !east brie%!y as a on!usion'
The 3on$ention 1;"1 ga$e a broad de%inition to who is a re%ugee #erha#s beause o% its !i&ited
a##!iation o% that ti&e to =uro#e and to the #eriod #rior to >anuary 1;"1' <ut these geogra#hia! and
ti&e !i&itations were re&o$ed by the 6rotoo! in 1;?@ and bea&e uni$ersa!!y a##!iab!e' This is a
gru&b!e that so&e ountries now ha$e' The %o!!owing was what the 1(234 said about the de%inition
o% a re%ugee in 2011, o&&e&orating the ?0 years o% the 3on$ention' (, a!so gi$e the re!e$ant !ink
be!ow %or anyone to go through the who!e 3on$ention)'
AA re%ugee, aording to the 3on$ention, is so&eone who is unab!e or unwi!!ing to return to their
ountry o% origin owing to a we!!F%ounded %ear o% being #erseuted %or reasons o% rae, re!igion,
nationa!ity, &e&bershi# o% a #artiu!ar soia! grou#, or #o!itia! o#inion'B
,t is i&#ortant to note the words /unwi!!ing to return0 a!ong with /so&eone who is unab!e0 to return to
their ountry o% origin' The 6rea&b!e o% the 3on$ention did noted that Agrant o% asy!u& &ay #!ae
undu!y hea$y burdens on ertain ountriesB and there%ore a!!ed %or internationa! oo#eration'
2owe$er, there are so &any rights (a!ong with ertain res#onsibi!ities) that the re%ugees ha$e when
they seek asy!u&'
Let &e -uote the 1(234 inter#retation %urther, %ousing &ain!y on two #rini#!es' First is the
#rini#!e o% /nonFre%ou!e&ent'0 Seond is the nonF#ena!iGation due to their i!!ega! entry or stay'
The 3on$ention is both a status and rightsFbased instru&ent and is under#inned by a nu&ber o%
%unda&enta! #rini#!es, &ost notab!y nonFdisri&ination, nonF#ena!iGation and nonFre%ou!e&ent'
3on$ention #ro$isions, %or e)a&#!e, are to be a##!ied without disri&ination as to rae, re!igion or
ountry o% origin' 7e$e!o#&ents in internationa! hu&an rights !aw a!so rein%ore the #rini#!e that the
3on$ention be a##!ied without disri&ination as to se), age, disabi!ity, se)ua!ity, or other #rohibited
grounds o% disri&ination' The 3on$ention %urther sti#u!ates that, sub+et to s#ei%i e)e#tions,
re%ugees shou!d not be #ena!iGed %or their i!!ega! entry or stay' This reogniGes that the seeking o%
asy!u& an re-uire re%ugees to breah i&&igration ru!es' 6rohibited #ena!ties &ight in!ude being
harged with i&&igration or ri&ina! o%%enes re!ating to the seeking o% asy!u&, or being arbitrari!y
detained #ure!y on the basis o% seeking asy!u&' ,&#ortant!y, the 3on$ention ontains $arious
sa%eguards against the e)#u!sion o% re%ugees' The #rini#!e o% nonre%ou!e&ent is so %unda&enta! that no
reser$ations or derogations &ay be &ade to it' ,t #ro$ides that no one sha!! e)#e! or return (Are%ou!erB)
a re%ugee against his or her wi!!, in any &anner whatsoe$er, to a territory where he or she %ears threats
to !i%e or %reedo&'
Fina!!y, the 3on$ention !ays down basi &ini&u& standards %or the treat&ent o% re%ugees, without
#re+udie to States granting &ore %a$ourab!e treat&ent' Suh rights in!ude aess to the ourts, to
#ri&ary eduation, to work, and the #ro$ision %or dou&entation, in!uding a re%ugee tra$e! dou&ent
in #ass#ort %or&'
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