SYDNEY: Australia’s highest court Wednesday opened the way for hundreds of asylum-seekers to be transferred to a remote Pacific outpost, including women allegedly sexually assaulted there, when it dismissed a challenge to a hardline immigration policy.
A Bangladeshi woman who arrived on an unauthorised boat and was dispatched to the tiny island republic of Nauru before being brought to Australia for urgent medical treatment during a pregnancy brought the High Court case.
She sought a declaration that Australia’s conduct in sending her to Nauru was unlawful in a challenge seen as a test case for more than 260 asylum-seekers, including 37 babies born in Australia and 54 other children, lawyers said.
But the High Court ruled six to one that the Australian government’s arrangements for offshore detention on Nauru did not breach Australian law.
Canberra’s hardline immigration policy ensures that asylum-seekers arriving in Australia by boat are sent to Nauru and Papua New Guinea.
Even if the detainees are subsequently found to be genuine refugees they are denied resettlement in Australia — a policy that has drawn international criticism.
The Human Rights Law Center, which brought the case for the woman, said the mother and her husband — with a one-year-old baby — were now terrified of being sent back to Nauru where some 537 asylum-seekers are currently housed. A further 922 men are held on PNG’s Manus Island.
“The legality is one thing, the morality is another,” said the center’s Daniel Webb.
Webb said that among the group at risk of being transferred to Nauru were women who had allegedly been sexually assaulted on the island as well as 37 babies born in Australia.
“Ripping kids out of primary school and sending them to be indefinitely warehoused on a tiny remote island is wrong,” he added.
‘Risk of rights violations’
Webb would not comment on the case of a five-year-old boy who was reportedly brought to Australia after being sexually assaulted on Nauru.
Immigration Minister Peter Dutton said he was seeking more information on that case, but stressed it would be considered compassionately.
“We are not going to send kids into harm’s way,” the minister told Sky News.
“But we are saying very firmly that if you don’t have a legitimate claim for refuge in Australia then we want to help you go back to your country of origin.”
Australia has long defended its hardline policy, saying it has prevented the deaths of asylum-seekers at sea and secured its borders.
Under the previous Labor government, at least 1,200 people died trying to reach Australia by boat between 2008 and 2013.
But refugee advocates slammed the prospect of asylum-seekers being returned to Nauru, from where allegations of abuses, including rape, have arisen.
Sending vulnerable and abused people back to “where they will suffer indefinitely would be callous and cold,” said Paul Power, chief executive of the Refugee Council of Australia.
The UN children’s agency UNICEF said returning minors to Nauru not only placed unreasonable pressures on the developing state but also put children at risk.
Amnesty International also joined the chorus of disappointment, saying those sent back would be at “real risk of serious human rights violations” in a place where many resorted to self-harm.
The Refugee Action Coalition called for protests around the country later this week after the court’s decision, which it said hid behind a legal technicality.
“It avoided the substance of the challenge by finding that the asylum-seekers on Nauru are detained by the Nauruan government,” it said.
The group said the court had maintained the “legal fiction” that asylum-seekers would not be sent back to detention because Nauru had declared an “open center” policy which gave inhabitants of its processing center freedom of movement.