Illicit boat entry from Sri Lanka (SL) to Australia is not a new phenomenon, as it was highly prevalent before the end of the Sri Lankan Civil War in 2009 and in the immediate aftermath. SL was among the top four source countries from which illegal attempts to enter Australia had been reported by 2012. 736 Sri Lankan boat migrants arrived in Australia at the end of the war. Between 2011 and 2012, 825 cases of illegal attempts were reported. Illegal Maritime Arrivals (IMA)s are unauthorised people who enter a country by unseaworthy boats. Even though border security measures to prevent this phenomenon were adopted by the two countries, a sudden resurgence has become evident due to the ongoing financial crisis of the country. More than 1,000 Sri Lankan people attempted to enter Australia by boats this year. According to the Australian Border Force (ABF), the highest number of boat entries in a single month was reported in June.
SL is currently undergoing the worst economic crisis that the country has experienced since its independence. This unprecedented economic turmoil was highly backed by the economic mismanagement of the country’s leadership that caused the shortage of foreign exchange, fuel, electricity, medicine and inflation, followed by the high price factor. Since this situation has affected persons’ livelihoods, many people began to leave the country to meet their necessities in countries like Australia. These activities are being taken place outside the regulatory standards of migration, which are highly intertwined with people smuggling. The Protocol against the Smuggling defines smuggling as ‘to obtain, directly or indirectly, a financial or other material benefits, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident.’ Routes of people smugglers frequently start from Negombo in the west of SL to Batticaloa and Trincomalee in the East; from Galle, Mirrissa and Hambantota in the South to Point Pedro in the North in SL. Importantly, the criminalisation of people smuggling invokes a criminal perspective to this humanitarian issue.
The Grey Areas in Australian Law
The ABF has already made assurances that the government will not ease the ‘Zero Chance’ for illegal entries even amidst the ongoing financial crisis of the country. In June, Australia also started to fund GPS tracking devices on fishing boats to prevent entries. Nevertheless, Australia is obliged to international norms that comply with the International Convention for the Safety of Life at Sea and the International Convention on Maritime Search and Rescue, which prohibit turning back unseaworthy boats to places where people are placed at risk. In that sense, Australia’s deportation needs to ensure that the individuals can be safely sent back to a country where their life or freedom will not be threatened. But the scope of ‘freedom’ is highly framed to the war scenarios and does not address the freedom of making economic choices.
Meanwhile, Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and the Convention on the Rights of the Child (CRC) which prohibit the arbitrary detention of protection seekers. Australia’s Migration and Maritime Powers Legislation Amendment Act in 2014 expanded the Australian executive powers to intercept, detain and transfer IMAs outside the territory. With regards to the interception at sea, though articles 19, 21 and 33 of the of the United Nations Convention on the Law of the Sea (UNCLOS) permit the authorities to allow ‘innocent passage’ by ships through their territorial waters, there is always an exception for the people who infringe immigration laws of the coastal states. In this context, a vessel containing asylum seekers face high risk of detention as they are intending to infringe the immigration laws.
But it is questionable that such measures are legitimate, as IMAs including asylum seekers who seek protection in other countries. This reality also applies to IMAs who ask asylum because of economic recession in the home countries. On the other hand, neither of the smuggling Protocol nor UNCLOS monitor the conditions of interceptions, detention or deportations and only lies on the domestic apparatuses. Most importantly, the fifth International Convention on Safety Life at Sea 1974 (SOLAS Convention 1948) ratified by Australia has ascertained the obligation of the state to provide Search and Rescue (SAR) services on the sea. These practices often lead to the detention of IMAs for prolonged time periods.
It is mandatory for IMAs to undergo screening processes to determine their claims. In relation to this, and ‘enhanced screening process’ has been applied to all IMAs from SL. But when it comes to the implementation, IMAs are deported under the border security measures of Australia without screening them. As an example, section 197C of the Migration Act1 also indicates that decision to remove illegal immigrant can be taken irrespective of whether Australia has non-refoulement obligations towards them. The principle of non-refoulement forbids states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill treatment or other serious human rights violations. It also applies to the violation of the rights to life, integrity or freedom of people and inhuman and degrading treatments. The section 197C says illegal immigrants who are in the detention and who have exhausted their visa needs to be remove ‘as soon as practicable’ even if this would breach Australia’s non-refoulement obligations. This provision has inevitably resulted in the arbitrary detention as the section 189 of the Migration Act mentions that a person who has not been granted a visa is subjected to mandatory detention that may be indefinite where no safe country ready to accept the person can be found. These provisions were also assured by the decision of the High Court case Commonwealth of Australia v AJL20  HCA 21 which held that the key objective of this act is to regulate the entries and the presence of non-citizens in Australia and detain illegal immigrants for the purposes of removal or deportation. The High Court also noted that since the detention intertwines with such purposes, the terms’ reasonably practicable’ does not offer a specific time period on detention. The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 which was introduced by the Australian government tighten its national security concerns more. In this regard, the amendment permits the government to detain illegal immigrants indefinity, where it had cancelled the visa of them but could not send them back to their home country as they would face persecution there.
Concerning the detention of IMAs, in CPCF v Minister for Immigration and Border Protection  HCA 1, the High Court of Australia held that the detention of the IMAs is not incompatible with the law of Australia, as it remains within the extent of the powers granted on Australian officials under the Maritime Powers Act 2013. On the other hand, section 36 of the Migration Act has introduced an entry fiction deeming persons arriving in Australia without authorisation to have not ‘entered Australia. In another words, section 36 of the Migration Act sets out the grounds for granting a protection visa. In this case, the section 36 (2B)(c) of the Migration Act deems that a applicant will not satisfy the criteria for a protection visa if ‘the real risk is one faced by the population of the country and is not faced by the non-citizen personally’.
Inter-state Approaches and the Legal Procedures in Sri Lanka
The above discussion shows that there is a minor space available in the legal context of Australia in processing protection claims. It has been commonly applied to all IMAs regardless of the people who flee from war scenarios or economic crisis. Within this context, the government of Australia has been tightened its border security measures with SL. It is a well-known fact that the ‘Operation Sovereign Borders’ (OSB) of the ABF interconnects with 16 Australian government agencies and international partners, including SL. Although the readmission agreement between SL and Australia remains outside public scrutiny, the two counterparts have developed border security cooperations, including the Australia-SL Joint Working Group on People Smuggling and Other Transitional Crime, followed by the Memorandum of Understanding (MOU) signed between the countries in 2017 to tackle the illegal arrivals. In this context, the government of Australia recently provided $50 million AUD aid to the country as the country faces its worst economic crisis. Moreover, an ABF Vessel ‘Ocean Shield’ returned 46 Sri Lankans who made effort to move to Australia illicitly. They were apprehended on 21 July (2022), and interestingly this was the first time the repatriation was operated by an ABF vessel. Furthermore, the issue of IMAs has been often politicised by successive Australian governments to gain political advantages. For instance, a spokesperson of the Liberal party admitted sending out text messages to voters on election day in May 2022 that some IMA boats that were headed for Australia were intercepted. The spokesperson also stated that the Sri Lankan Navy stopped a boat and 40 people on board were detained.
As per sections 45, 45A and 45C of SL’s Immigration and Emigration Act No. 20, illegal departures of people have been viewed as a criminal activity. Particularly, section 45C of the Act has mentioned that any person who facilitates persons to leave SL illicitly is guilty of an offence and this offence entails a minimum mandatory sentence of one year of imprisonment that can be extended up to five years. The imprisonment is granted in terms of the transportation of persons by sea, land or any other manner without obtaining valid travel documents. But there are no specific laws available under the Immigration and Emigration Act that address the protection needs of the victims of smuggling. In accordance with the Act, the returnees who are being taken into the custody of the Sri Lankan Criminal Investigation Department are also required to undergo the prosecution. As an example, the Act has highlighted that any person who organises one or more persons to leave SL in contravention of the provisions of the Act shall be guilty of an offence and upon conviction be liable to imprisonment of either discerption for a term of not less than three months and of not more than five years.
Understandably, the border security measures of Australia signify the migration issue as a fundamental element of national governance and of regional cooperation. Therefore, international norms on the protection of asylum seekers have been partially practiced within the domestic context. In this regard, deportation or prolonged detention of IMAs cannot be identified as an effective solution to this issue. In other words, those measures do not address the root causes of the problem. Hence, the granting of Temporary Protection Visas could be a win-win approach for both countries, as it will be beneficial to increase the remittance of SL and as well as to strengthen the economic development of Australia.
Ms. D.G. Niruka Sanjeewani is a Senior Lecturer in International Relations at the Department of Strategic Studies, General Sir John Kotelawala Defence University (KDU), Ratmalana, Sri Lanka. She has a BA (Hons.) in International Relations and a MA in International Relations from the University of Colombo, Sri Lanka. Currently, she is following her PhD in International Development at Chulalongkorn University, Bangkok, Thailand. Her research interests include areas related to Theories and Concepts of International Relations, International Development Issues, Labour Migration and Refugee Studies.