11-22-06, 9:10 am

A High Court decision in favour of an appeal brought by the Federal Government means that asylum seekers will now have to 'prove' that conditions in the country from which they fled are not safe enough for them to return at the expiry of their Temporary Protection Visas (TPVs). The onus of proof is reversed. The government will no longer have to establish that changes in the homeland are 'substantial, effective and durable' before deporting individuals. The outrageous decision was agreed by a 4-1 majority with Justice Michael Kirby opposed. The proceedings featured a rare intervention by the UN High Commissioner for Refugees in the case which involved two Afghan men of Hazara Shiite background. The decision increases the insecurity and anguish of all asylum seekers.

The men known as QAAH and NBGM are reported to be devastated by the finding. They arrived in Australia in 1999 and were first granted a TPV in 2000. Neither of the men is entitled to remain in Australia as a refugee because a ruling by the government's Refugee Review Tribunal (RRT), which had been overturned by the Federal Court, has now been restored by the High Court. The RRT maintained Australia ceased to owe the men protection after the fall of the Taliban Government from which they had fled.

Justice Kirby said the men have a well-founded fear of persecution in Afghanistan based on reports of violence and instability in that country; including recent news of the beheading of 12 ethnic Hazaras. He described the judgement as parochial and hostile to international law.

At the same moment the ruling was being announced, the Department of Foreign Affairs still had the following advice on its Smart Traveller site*:

'We strongly advise you not to travel to Afghanistan because of the extremely dangerous security situation and the very high threat of terrorist attack. We continue to receive a stream of reporting indicating that terrorists are planning attacks against a range of targets including places frequented by foreigners. These reports include information about a potentially heightened threat of attack on days of national significance.

'If you are in Afghanistan you should consider leaving.'

The decision will directly impact 17 litigation cases, 10 other matters before the Refugee Review Tribunal and 630 applications for further protection from current TPV holders from several troubled countries. Between 1999 and October this year, 9875 asylum seekers applied for TPVs about 8450 were subsequently granted.

In June last year, the government was forced by community pressure and a group in its own ranks led by Victorian MP Petro Georgiou to soften its extremely harsh stance towards asylum seekers. Hundreds of detainees were released and decisions on 4000 applications for TPVs were finalised. Immigration Minister Amanda Vanstone has welcomed the High Courts decision and effectively declared that the Government is back in the business of scrapping the rights of asylum seekers.

The Greens and Democrats have protested the decision. Opposition immigration spokesman Tony Burke pledged that a future Labor Government would put the onus of proof of secure, stable conditions in the asylum seeker's homeland back onto the Federal Government.

Australia's Guantanamo

Meanwhile, a measure enjoying bi-partisan support is the building of a detention centre on Christmas Island with facilities akin to those of a maximum security prison. The 800-bed complex will have perimeter lights and electrified fences, corner-mounted security cameras in the detainees' rooms and centrally controlled door locks to enable a rapid lockdown of the camp. It will have isolation rooms of the type used to hold Cornelia Rau during her detention.

The isolated centre is being built in an area of the national park on the western tip of the island and is surrounded by cliffs. The Government claims the facility is being established as a deterrent to smugglers and illegal immigrants and that it will be useful for contingencies.

Greens Senator Kerry Nettle, who has visited the site, has questioned the government's motives for pressing ahead with the construction of the centre in spite of the rapid decline in asylum seekers arriving by boat since 2003. She condemned the inhumanity of the centre's facilities, saying that it is ' callous and cruel to treat people in that way. The international community has rejected Guantanamo Bay, so why should we build one here?

'They [the government] made a commitment to do this, to build this place, and they perceive any backdown as a form of weakness even though we don't need it.'

* www.smartraveller.gov.au

From The Guardian