By Adam Fletcher

Yesterday it was reported on the ABC that unsuccessful asylum-seeker Ismail Mirza Jan is to be the first to be returned to Afghanistan involuntarily. This last word is important, because previous returnees have all accepted what’s known as an Assisted Voluntary Return package. These sorts of packages were also offered by the Coalition Government a decade ago, and were criticised from the beginning by Amnesty and refugee advocates. Allegations of misinformation provided to unsuccessful applicants for refugee status cast doubt on their voluntary nature. Incidentally, the UK adopted a remarkably similar scheme which has met with familiar criticism.

In January of this year the Australian (Labor) Government entered into a Memorandum of Understanding with the Afghan Government, with the (somewhat surprising) concurrence of the UN High Commissioner for Refugees (UNHCR). Article 9 of this MOU provides:

The Government of the Islamic Republic of Afghanistan, noting that voluntary return is always preferable, will readmit its nationals who are in Australia, as well as foreigners who are immediate family members of such nationals, who:

a)      elect, on the basis of their freely expressed wish, to return to Afghanistan; or

b)      are found not to be in need of international protection and not entitled to remain in Australia. [Emphasis added]

Interestingly, the Afghan Government is at odds with the Australian Government over whether this provision can permit the forced return of unsuccessful asylum-seekers. UNHCR managed to ensure some concessions on unaccompanied or separated minors were included (see article 13).

The point of this agreement, as the Government explained in the accompanying media release, is to deter Afghans from risking their lives in attempting the long and dangerous voyage to Australia. However, a major issue is that we are bound by both the 1951 Refugees Convention (see article 33) and the 1984 Convention against Torture (UNCAT – see article 3) not to return anyone  to places where they face a threat to their life or freedom (Refugees Convention) or ‘where there are substantial grounds for believing that [they] would be in danger of being subjected to torture’ (UNCAT). There is also an implied prohibition on sending people to places where they face a real risk of ill-treatment in breach of article 7, or a real threat to their life in breach of Article 6 of the 1966 International Covenant on Civil and Political Rights.

Collectively, the above provisions are known as the non-refoulement rules. They apply regardless of whether the individuals in question are found to be genuine refugees. For example, if they have been persecuted for reasons not covered by article 1A of the Refugees Convention, or if they are excluded from refugee protection on security grounds (under article 1F), this does not necessarily mean that they do not face serious risks on return to their own countries.

Apart from the multilateral treaties mentioned above, the principle of non-refoulement is also reflected in the MOU (see article 3(c)). However, international human rights and refugee law sometimes struggles for respect in this country, and our dualist approach means it cannot ‘operate directly’ in the domestic sphere. As such, it is desirable that these kinds of norms be incorporated into Australian law.

It was not widely reported (with honourable exceptions), but a prohibition on refoulement was in fact inserted into Australian law only recently by the Migration Amendment (Complementary Protection) Act 2011. It is an important piece of legislation which could render returns to dangerous places such as Afghanistan illegal under Australian law, and it should be taken into account in evaluating the legality of Mr Jan’s case, even though it has not yet commenced.

The Catholic Church has commented on the ‘absurdity’ of claiming Afghanistan is safe for returnees – particularly Hazaras whose families have previously been targeted by the Taliban such as Mr Jan. The Church, which has plenty of direct experience with Afghan asylum-seekers, also doubted it would prove much of a deterrent given the desperate situation they are fleeing.

By the Government’s own admission in its announcements on the need to maintain an Australian military presence in Afghanistan, local security forces are presently unable to assure the security of the citizens of that country, and may not be in a position to do so until at least 2014. In fact, during his latest visit to Tarin Kowt, the Opposition Leader has flagged a need for Australian involvement even beyond that time frame.

According to reports from independent agencies on the ground, 2010 saw the highest numbers of civilian casualties in Afghanistan since the war began in 2001. According to research conducted over six years by the Edmund Rice Centre, the risk faced by those who returned ‘voluntarily’ under the Howard Government was clear, and manifested itself in (sometimes fatal) attacks. More recently, in reporting on the MOU in January this year, the Sydney Morning Herald noted that 11 Hazaras had been decapitated in Oruzgan in June 2010. Despite the fact that Oruzgan is the province where the Australian troops are based, it was reported just this month the local Governor wants to leave because he fears for his own safety.

The UK Government (along with many others) publishes guidance for officials who have to make decisions about returns (called Country of Origin Information) to Afghanistan. The latest (11 October 2011) UK report gives a comprehensive overview of the security and human rights situation, and it notes that the “gradual descent of the standing of the Hazaras has seen them plunge to the very depths of the social hierarchy in modern Afghanistan.” It also quotes the US Government as saying that, while the situation for Shi’a Muslims generally (and Hazaras in particular) has improved in some areas since the height of the Taliban’s reign, members of this community are still targeted specifically by insurgents. It mentions the reports of decapitations in Oruzgan in June 2010 and also of “forced expulsions of ethnic Hazaras and Tajiks from areas controlled or conquered by the Taliban, as well as harassment of these minorities throughout Taliban-controlled areas.”

It was reported in 2008 that the Taliban then controlled up to 72% of Afghanistan, effectively surrounding Kabul. Since the 2010 surge, this figure has undoubtedly decreased, but the recently‑announced ‘draw-down’ could well see a resurgence in Taliban influence – particularly given the confidence they are displaying in dismissing the power-sharing negotiations.

As if this weren’t bad enough, Amnesty points out that those without family and tribal links (such as Mr Jan, who fled when he was 15 after the Taliban killed his father) find it even tougher.

Perhaps the Australian Government’s own information, reflected in DFAT’s travel advice for Australians thinking of travelling to Afghanistan, best sums it up:

We strongly advise you not to travel to Afghanistan because of the extremely dangerous security situation and the very high threat of terrorist attack.

If you are in Afghanistan, you should consider leaving.

Given the legal standards and the overwhelming evidence of danger, it seems incongruous for the Government to argue that it is acceptable to return anyone to Afghanistan for the time being, let alone those from ethnic/religious minorities and other vulnerable groups.

UPDATE: It seems the Federal Magistrates Court also has concerns – according to Kirsty Needham (Sydney Morning Herald Immigration Correspondent) it granted a temporary injunction against removal on the weekend. Ms Needham also reports the Government’s removal order had a $32,000 invoice attached, which is troubling but not unexpected.