Colombo Telegraph

The Space Between The Laws: Insights Into Sri Lankans’ Irregular Migration Into Australian Waters

By Kirsty Anantharajah

Kirsty Anantharajah

When liberties are taken away and when democratic institutions die, is it even worse than human beings dying? 

when institutions die, people end up living as if they were dead.

In 2014, a boat carrying 157 Sri Lankan asylum seekers was intercepted at sea near the coast of Christmas Island, Australia. They were transferred to an Australian customs boat where they were detained at sea for one month. Their location was not disclosed to the Australian public. They were held against their will, in windowless rooms. Australia attempted to return these people to India, detained them in the Cocos Islands and then in Western Australia. Finally, they were transferred to Nauru, the site of one of Australia’s offshore detention centers.

The cruel irony is that the very rule of law breakdown that pushed them from their homes in Sri Lanka also awaited them in Australia. And the lived experience of both is eerily comparable.

The rule of law has great power to determine whether life proceeds with security and hope or whether uncertainty and insecurity will be the norm. Sri Lanka’s rule of law crisis is characterised by a climate of arbitrariness, in part created by corrupt institutions and abhorrent security legislation. This breakdown is felt by Sri Lankan citizens in their experience of disappearances, torture and sexual violence. This has motivated some individuals to leave the country’s borders and begin their journey as irregular migrants. The untold story is that this same failure of the rule of law also resides in Australia.

Pull factors: myth of liberal democracy

Australia has a policy of mandatory detention: those who arrive in Australia without a visa will be mandatorily detained, and under Australian law, they may be held indefinitely.

The conditions of detention, coupled with the mental anguish caused by the arbitrariness and the potentially enduring nature of this detention, has been deemed torture. Special Rapporteur Juan Mendez, has reported that several aspects of Australia’s offshore processing policy constitute a contravention of its obligations under the Convention Against Torture.

Australia’s offshore detention centres are located outside the mainland on Manus Island and Nauru, where the burden of refugees is regionalised, provision of services are privatised and accountability is obscured. Daily life on these islands is shrouded in secrecy; NGOs, media and the Australian public are precluded from even bearing witness to the atrocities that occur.

Documents leaked to The Guardian in 2016 revealed abuse, sexual violence, suicide attempts and extreme hopelessness. One report describes a security guard bartering longer shower time allowances for sexual favours from a detainee:

“It was a male security person. She did not state if this has or hasn’t occurred. The security officer wants to view a boy or girl having a shower.”

Whilst these security personnel are contracted by the Australian government, liability for these harms are non-existent.

Australia, through Operation Sovereign Borders, has a militarised response to asylum seekers. It effectively “pushes back” boats of asylum seekers, in some circumstances, to the country they fled. In May 2016, after being (inadequately) screened at sea, a group of Sri Lankan asylum seekers were returned to Sri Lanka, Australia’s obligation of non-refoulement apparently forgotten.

The Australian public is not informed about any of these “on sea” operations. The Australian people do not know how many Sri Lankans never reached our shores.

Sri Lankan asylum seekers arriving in Australia without a visa are now prevented from applying for any type of permanent protection. Many have left young families at home, promising to pave the way. However, families cannot be sponsored on temporary visas.

Those fortunate enough to be allowed out in the community while they make temporary protection applications are on bridging visas: many are denied healthcare, work rights and an education. Some people will spend several years this way — studying, working, doing their best to survive — becoming part of Australian society, only to be deported or detained without claim to any permanent rights.

The self-immolation of 29-year-old Sri Lankan man Leo Seemanpillai in Geelong, trapped in this cycle of uncertainty, illustrates this pain. A friend of the young man gave voice to the precariousness of Leo’s position:

“He went through so much in his life, and when he came to Australia he was given a visa that is filled with plenty of uncertainty, he couldn’t accept that.”

The rule of law (and some might say, morality) does not exist in Australia’s immigration policy. The tragedy is that in leaving Sri Lanka, people are again forced to relive the same nightmare of arbitrary detention, torture and lack of transparency. Australia is in the throes of a rule of law crisis, and the full burden of this falls on those who dare to seek asylum. The true horror is that this is intentional. The people languishing and suffering in Australia’s systems are there by design; their bodies a deterrent message to their countrymen who may, one day, seek safety in the same way.

Sri Lankan asylum seekers, from their origin to their destination, are forced to remain in these shadowy limits of the law; they are forced to live as though they were dead. We must do more than give voice to this unique form of suffering. Broken institutions, at both ends of the journey, must be rebuilt.

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