David Manne: 'protect people and borders'

Lawyer David Manne has recently taken the Australian government to court over its plan to send detained asylum seekers who arrive by boat in Australia to Malaysia. Burmese nationals comprise one of the largest groups seeking asylum in Australia.

DVB spoke to him about what he sees as the major issues with the case. The hearings began on Monday.

Joseph Allchin: How’s the injunction going, and what do you think the outcome will be?

David Manne: Well, recently the High Court found that there are serious questions to be argued and determined in relation to our clients, these very vulnerable people, who have brought their case to the court, asking the court to decide whether the Australian Government’s proposal to expel them to Malaysia instead of allowing them to stay in Australia and apply for refugee protection here, whether that is in fact lawful, whether the Australian Government really has the power, under Australian law, to expel them to Malaysia where they fear for their safety.

There is another key question in this case and that is; there are six unaccompanied minors- that is, children that have come to Australia seeking protection from persecution- who don’t have any parents or other guardians with them. The Minister for Immigration in Australia is their legal guardian and has the duty to at all times to act in these childrens’ best interests: how can it be in their best interests, they ask- and we ask- the court to decide… How can it be in their best interests to be expelled to Malaysia instead of being allowed to stay in Australia and seek protection in Australia?

And one of the key issues in this case along those lines is; if the Australian Government, if the Minister for Immigration were to propose expelling these unaccompanied children to Malaysia, that we would say that that would constitute a fundamental-fundamental- abandonment of the Minister’s basic responsibilities to properly care for these children. So that will be another matter for the Court to determine.

JA: That brings me on to a few things, but firstly, how concerned would you be over Malaysian facilities?

DM: Well, one of the real issues in this case relates to the Australian Minister for Immigration’s declaration that he has made under Australian law which- to the effect- that Malaysia is a suitably safe place to expel asylum seekers to from Australia. And this declaration, as the Minister has made, essentially declares that Malaysia is a country that has adequate procedures for assessing refugees, it has adequate protection in place, and adequate human rights standards applied there.

Now, one of the key aspects of this challenge in the Court is over that declaration, particularly given what we know about Malaysia; and that is that it is not a signatory to the refugee treaty, as Australia is, it also has not signed other key Human Rights treaties. And also, there are serious concerns about the adequacy of protection, and the application of Human Rights standards in Malaysia. So these are going to be key questions in the case, related to the issue of this declaration, and whether that declaration can in fact be open to review by a court in this country.

JA: Now, more generally, why do you think Australia and the Gillard Government has sought this swap deal?

DM: Well, the first thing to say is that this case is not about an attack on the policy, it’s not attempt to criticise the policy which has been referred to as the ‘Malaysian Solution’, this refugee swap, it is about forty-two asylum seekers from Afghanistan and Pakistan, some of whom are unaccompanied children, doing something very normal and reasonable in Australia and that is; asking the court to check whether, what the Government proposes to do to them- which they fear- is, in fact, lawful: whether the Government really has the power to do this under Australian law. So that’s what this case is about, it’s not about why the Government has come up with this refugee swap policy, or whether that policy is correct, and I think that’s a very important matter to state.

What is clear, however, in relation to this policy- the refugee swap- and in relation to the question of asylum seekers coming by boat to Australia and seeking protection is that it has become a very politically controversial issue in Australia. There are lots of concerns within the community about people coming by boat to Australia , those concerns relate to a number of matters; some people believe that it’s not an appropriate way for people to seek protection, others are concerned about people risking their lives again by getting on boats and coming to Australia.

But what’s clear is that is a matter of great controversy in Australia and there are, certainly on both sides, both major political parties, both the Government and coalition- the opposition- both have essentially reached a partisanship on the question of how to deal with asylum seekers coming by boat to Australia. Both major parties have essentially the same philosophy, which in policy terms is to take very… energetic and robust measures to stop people coming by boat to Australia, seeking asylum and the tools for doing it are essentially the same too and this is to find other countries in the region to expel asylum seekers to for processing and warehousing.

So both are pursuing those policies, and really the only major difference with both is where those asylum seekers should be sent. Currently the Government has done a deal with Malaysia- a refugee swap- whereby Australia will take 4,000 refugees over four years from Malaysia in return for Malaysia agreeing to accept up to 800 asylum seekers who arrive in Australia by boat seeking asylum.

So essentially what we’ve got here is a situation where both major parties are proposing to do something which amounts to in many ways a serious abrogation of responsibility for a country that has signed up to the refugees convention by expelling people elsewhere rather than allowing them to stay in Australia and seek refugee protection here, as we have done so in the past.

JA: So, would you agree with Navi Pillay that it falls foul of the refoulement clause in the 51 refugee charter of the UN treaty?

DM: Look, there’s no doubt that under international law- and I should again make it clear that the current High Court case is a case involving the question of whether under Australian law, that it Australian domestic law, the proposal to expel these asylum seekers who we are assisting, the question here is whether under Australian law, in this case the government has the legal power to expel these people that we are assisting to Malaysia. The broad question that you’ve asked is in relation to whether Australia, having signed the refugees convention, is in violation of its obligations if it expels people elsewhere, for example to Malaysia, to Nauru or to Papua New Guinea.

And let’s take the situation of Malaysia: at the moment there’s no doubt that the proposal to expel the asylum seekers to Malaysia from Australia instead of allowing them to stay in Australia and seek refugee protection here, could constitute a violation of Australia’s obligations under the refugee’s convention, there is no doubt about that, because at bare minimum Australia’s core obligation having signed up for the refugee’s convention is to ensure that it does not expel a person that comes to Australia seeking refugee protection to a situation elsewhere where they could be exposed to serious harm. That is to, you know, human rights abuse on civil or political grounds and what we know, of course, is that in many countries of the world- potentially including Malaysia- there are real concerns about whether or not someone’s human rights would be respected.

And all you need to do is to look at the evidence for example in Malaysia of a long standing- a very poor track-record that Malaysia has in relation to the treatment of refugees and asylum seekers and the best example of that that I can give is a recent example; the UN refugee’s agency report, which is readily accessible on the internet, their report on Malaysia for 2011, which reports for example abuse to toward asylum seekers and refugees which includes arbitrary arrests, arbitrary detention, it also includes beatings, and whippings, and deportation. So, I think what’s clear is that the evidence indicates that there could well be real risks for asylum seekers or refugees in Malaysia, depending on the circumstances.

JA: We did an interview with a Rohingya asylum seeker who was detained indefinitely in Villawood having come by boat; the Australian immigration service were the first to comment on the story, saying that he was free to leave whenever he wanted is that irresponsible is that? Is that true, that a Villawood refugee can just leave and just go back to Malaysia at any point?

DB: Look, I couldn’t comment on the specific case, I don’t know the details so I wouldn’t want to comment on that particular case, but if someone comes to Australia seeking Asylum then the question of whether they can go to another place, you know depends upon their rights to reside in that country and you know it’s not clear to me for example that a non-citizen, that is a person who is not a citizen of Malaysia could readily enter into Malaysia, without a specific permission, without a specific form of residence or temporary permit so, I think it’s quite unclear.

I also think that is also stands to reason that most countries in the world are not, do not readily, permit people to enter if they know that they will try to enter and seek asylum in that country, so that seems to be a fairly obvious and common situation around the world and so I think many people that languish in detention in Australia and elsewhere who are seeking asylum, would often have great difficulties- and do in my experience- have great difficulties finding a safe third country to go to so that if they have a well founded fear of persecution in their own country it is commonly extremely difficult, if not impossible, to find a safe third country where they could go to. And many countries that they’ve transited through are countries do not provide adequate protection and may well in fact present very clear and present dangers to them.

JA: Some people suggested that the ethnic profile of the refugees will be affected by this because for instance, in Malaysia certain ethnic groups allegedly get preferential treatment or that for instance more Burmese will get to Australia through Malaysia than Afghans or Iraqis for instance. Is that something you think is true?

DM: No, look, I don’t think that there’s any clear and consistent pattern of preferential treatment, I think that the real concern here about discriminatory treatment relates to the way that people are treated when they arrive in Australia seeking asylum and there are clearly different classes of people according to policy, and really if we can bring it back to the High Court challenge at the moment, one group of people that have, are now, facing quite differential treatment are those that have arrived by boat in Australia at excised parts of Australia that, after the signing of the deal between Australia and Malaysia on 25 July as we know, are those people who arrive in Australia seeking asylum on or after that date, have been told that they will be expelled to Malaysia and this High Court case is at its heart assisting a number of those people subject to that policy, it is assisting them to check whether that is lawful with the courts.

JA: Now, with the 4,000 who will be resettled to Australia, do you know –is that- above and beyond what Australia agreed to take, the number they’re already obliged to take? Or is that supplementary?

DM: Yes, the 4,000 that Australia has agreed to take, will be received over four years, so 1,000 per year for four years, and those refugees are in addition to the annual intake by Australia at a rate of 13,750 refugees, immature and infants so those people will be additional to those that we as a country take from around the world including people that arrive and apply for asylum in Australia and are granted protection.

JA: What do you think the Parliamentary enquiry will throw up? Besides to the High Court injunction?

DM: I’m never one to speculate on what Parliamentary Inquiries will in the end examine precisely or how they’ll do it, but I think one thing that’s very important at the moment is to note that there is a very profound concern within Parliament and within civil society about the proposal to expel asylum seekers from Australia to other countries without allowing them to remain and seek refugee protection. There’s no doubt a lot of concern and that concern is reflected in the announcement of this inquiry. I mean, for example,  and one of the central issues in the High Court challenge is scrutiny of the extent to which the Immigration Minister’s declaration that Malaysia is a suitable country to expel asylum seekers to, whether that declaration is open to scrutiny and to challenge and if so, to what extent.

JA: But it is an odd coalition isn’t it, the Liberal party and the Greens, I mean do you think the Liberal Party share your concerns or Navi Pillay’s concerns about the situation?

DM: Look, I think I’ll let others judge the basis of their concern, but I think that certainly there’s a lot of concern around where it comes from and for what purpose I’ll let others speculate on.

JA: Sure. As you’ve mentioned the injunction focuses quite a lot on children which is obviously quite distressing, but how common is it for minors to find themselves unaccompanied in Australia?  And briefly, how and why did your clients come to Australia as children?

DM: It’s not uncommon at the moment for unaccompanied minors to come to Australia seeking protection, there are a number of children in circumstances at the moment that essentially reflect the tragic reality around the world; that often children are separated from their parents and often there are situations where the family tries to accept the fact that essentially, not everyone will be able to flee at the same time, it’s just not practical, not possible, and that often it is young, particularly young, men or boys in fact, children, adolescents, that are targeted by persecutors.

Certainly we’re seeing that in Afghanistan there’s been a systematic pattern of targeting teenagers, you know, who are not adults- male teenagers- as part of a campaign by extremists to essentially decimate communities and their ability to oppose extremist elements or defend themselves, or indeed to regenerate.

Also I think that one of the key things here, and I’m not able to go into the particulars of the claims being made by our clients that are unaccompanied minors, but what’s clear is that over the years that unaccompanied minors in general have come- they have essentially been forced to flee- and have not been able to come with their parents due to force of circumstance, and have then been left in –really- a very vulnerable situation without proper guardians. And one of the real concerns is how Australia is to properly treat, and care for unaccompanied minors in this situation, you know, how does Australia look after children in this sort of situation? Again, to bring it back to the legal case, one of the key issues here is the- how the- law… what the law says about Minister’s duties to both on the one hand act in the best interests of these children  and other hand at the same time with Minister being responsible for implementing a policy which may well be contrary to the best interests of the child, by expelling them to Malaysia.

JA: Chris Bowen (Australia’s immigration minister) seems to suggest that the swap deal was somehow also about attacking people smugglers, I mean, do you take that seriously? And also, do you think, is that responsible?

DM: There’s no doubt, I think we’ll start with the fact that, there’s no doubt people smuggling is a very cynical and dangerous trade and a criminal one. It’s a serious criminal trade, it’s a seriously cynical, criminal and obviously often  endangers the lives of people in the way that it’s done.  But the central focus here must always be, to first and foremost to focus on, how to properly protect people, rather than how do we, at all costs, protect borders.

So there has undoubtedly, in the public discourse, been a disproportionate emphasis on the protection of borders at the expense, often, of the public protection of people in accordance with the law. And so I think that that’s really where a lot of the flow of the discussion needs to turn; is to how do we ensure that people are properly protected, wherever they live in the region. We know that there are an enormous amount of people moving through the South-East Asian and Pacific region in search of protection, and we know that many of the situations they find themselves in within the region do not present  a situation where they can be properly protected, or housed, or processed.

So I think here what the aim really is rather than focusing on the fundamental problem being the criminal and cynical trade of people smuggling, the key problem is actually how best to develop a framework in the region where all the key players, that is the states, the asylum seekers, the refugees and UN agencies and the like- how does international community respond to this problem, and develop a framework where, wherever people move in the region seeking protection, they can be humanely housed, fairly processed, and if recognised as refugees be resettled in a reasonable period rather than needing, rather than feeling the need, to engage the service of a people smuggler and put themselves in danger again by putting themselves on a boat and coming to Australia.

Leave a reply