For those not trained in the complexities of the legal system or accustomed to the procedures and traditions of the fraternity, the argumentative back and forth at the Federal Court building on William Street in Melbourne is both confusing and slightly surreal. It’s Friday morning in late August, and we sit silently through two brief hearings ostensibly dealing with the same matter: the plight of an Eelam Tamil family facing deportation from Australia.
The government has attempted to remove them twice. The first time, it was stymied by this court. The second time – well, that’s what these hearings are about. Priya, Nades and their young daughters Kopika and Tharunicaa are in Darwin, having been taken off a plane bound for Sri Lanka after being removed last night from the Broadmeadows detention centre. The other unknown and unnamed Tamils also being deported on the flight continued without them. An eleventh-hour injunction has saved this family – temporarily at least.
The proceedings are confusing because the immediate issue in the court is unrelated to justice or morality. It is purely jurisdictional. There seems to be agreement among the barristers that the Federal Court should take over all matters regarding this case. In the second hearing, the Federal Circuit Court judge – who is different not only in person but, we guess, in legal reach – agrees without remonstration. And that’s that. We will be back next week to hear the matter. And the injunction preventing Tharunicaa and, by extension, the family from being removed is extended.
The government perhaps has the power to remove the rest of the family but, perhaps because of international agreements to which it is a signatory, says it will not separate them. So, the whole family’s plight is, perhaps, dependent on Tharunicaa being given a chance to have her individual case heard. Having been born here to non-citizens, she and her sister are, perhaps, stateless. Who knows? Right now, perhaps nobody. All that is certain is the federal government’s unrelenting desire to stop Tharunicaa from being assessed. If she does have her claim assessed and succeeds, then the wrangling will begin over whether that opens the door for the whole family to remain.
It’s surreal because the gravity of the situation is not at all reflected in the conduct of the legal teams. One side is attempting to free a struggling family facing persecution on their return to Sri Lanka. The other is doing the government’s dirty business of ensuring they never ‘settle’ in Australia. Yet they all seem positively chummy. Outlining their respective cases to judge Mordecai Bromberg, they repeatedly refer to each other as ‘my friend’ and ‘my learned friend’. They converse during the proceedings. When one admits not having certain information at hand, the other offers his laptop with the needed documentation displayed. They are well-dressed, highly paid and erudite, so you can see why some people would be impressed.
But the process is foreign to those of us familiar with robust political and polemical debate. It feels corrosive to the character of everyone in the room, the congeniality like a sedative to our moral senses, rendering us all mute and deferential to whatever the hell is going on (we’re also told to bow to the bench when entering and exiting the room). But this is the way it is supposed to work: the dispassionate dispensation of justice – just or otherwise. Politics is about writing the law, changing the law, defying the law; jurisprudence only interprets it.
Scores of police and Border Force officers raided Priya and Nades’ home in Biloela, Queensland, eighteen months ago. The family were given ten minutes to gather whatever belongings they could, before being separated – Nades in one van, Priya and the daughters in the other. A distressed neighbour, who did not wish to be identified, said over the phone that she was prevented from talking to the family as they were being removed. When she checked on their home after the police left, baby’s milk was still warming in the kitchen; most of the family’s possessions remained.
Despite their distress, and her pleas, Priya was prevented from sitting with her daughters during the trip to Gladstone Airport. ‘I asked the guards, ‘If it were your children, would you treat them this way, or is it only because we are refugees?’’, Priya related through a translator. ‘I was humiliated. I was made to feel worthless. I will never forget that experience.’ The family was flown to Broadmeadows detention centre, Melbourne, where they were confined to a room under guard. Priya says Border Force officers told them that if they didn’t sign ‘voluntary’ deportation documents, they would be denied access to a phone and she and her husband would be separated and deported to Sri Lanka. After a week, again they were put into vans and flown thousands of kilometres, this time to Perth, and placed on another aircraft full of Tamils bound for Sri Lanka. A last-minute injunction pulled the family from the plane and they were returned to Melbourne, where they were held for eighteen months, the daughters suffering vitamin deficiencies and social deprivation, before the latest deportation attempt.
Nades fled Sri Lanka in 2012, fearing for his life, after he was targeted by security forces over his previous association with the Liberation Tigers of Tamil Eelam (LTTE, or Tamil Tigers. Eelam means ‘homeland’), a national liberation group that fought for a Tamil state in the north and east of the country. Priya and her family fled the country nearly twenty years ago due to violence in their home district of Batticaloa, in the country’s east. The security forces there murdered her fiancé – burning him alive with five other men – harassed her family and sexually assaulted her mother because of the family’s association with the Tamil Tigers. She came to Australia by boat in 2013. The two met in Australia and married in 2014, hoping to restore normality to their lives.
They are not alone in their struggle for safety. More than four thousand Tamils fled here by boat between 2009 and 2013. In response to their pleas for sanctuary, the Labor government in 2012 introduced ‘enhanced screening’ to make it more difficult for Sri Lankan arrivals to gain protection. Foreign affairs minister Bob Carr said the following year that there was no evidence that ‘Tamils live in fear’. Anyone with the capacity to read English could have acquainted themselves with the international reports to the contrary. But Carr wasn’t really a details man. When the Liberals were elected, the situation worsened, with boat arrivals being intercepted at sea and asylum seekers handed over to the authorities from which they had fled in the first place.
Today, more than ninety per cent of Sri Lankan Tamils taking their case to the Immigration Assessment Authority have their application for asylum rejected. This is not because they lack merit; it’s because Australia has put its political and geostrategic interests above the rights of Tamil refugees. Five years ago, the Sri Lankan High Commission thanked the Australian government for its ‘bold decision of not co-sponsoring this year’s [United Nations] human rights resolution’. The blocked resolution related to clear evidence of war crimes – torture, kidnapping, the military slaughter of thousands of civilians corralled onto a beach in the north-east of the country in 2009, and thousands of disappearances of Tamil activists, and their friends and family.
The Australian and Sri Lankan governments consummated their relationship on quid pro quo: in return for Sri Lanka stopping asylum seekers from leaving the island, and for taking back those returned, Australia would defend the country against charges of human rights abuses. As the Australian’s south-east Asia correspondent Amanda Hodge noted in 2015: ‘Sri Lanka’s new prime minister, Ranil Wickremesinghe, claims the Australian government’s silence on alleged human rights abuses was the price it paid to secure co-operation from the former Rajapaksa government on stopping asylum-seeker boats.’
Former prime minister Tony Abbott as much as confirmed this in Quadrant online the following year. ‘I’m sure that the Sri Lankan president was pleased that Australia didn’t join the human rights lobby against the tough but probably unavoidable actions taken to end one of the world’s most vicious civil wars’, he wrote. ‘Certainly, both countries became even stronger partners in the Abbott government’s most urgent initial task: to end the people-smuggling trade.’
The Australian government is in partnership with the oppressor nation in Sri Lanka. What this has meant for Tamils seeking asylum here is clear: were the Australian government to recognise their legitimate claims of persecution, it would undermine the deal with Sri Lanka. It would be a diplomatic embarrassment and a blow to the geopolitical alliance between the two states. So, faced with well-documented ongoing human rights abuses in Sri Lanka, Australia has cracked down on all Tamil asylum applications. Now, the government is determined to deport two Australian-born infants to a country they have never been; to return a father with a well-founded fear of persecution to the place he fled more than half a decade ago because of death threats; to return to Sri Lanka a mother who has not set foot on the island since 2001.
At the courts last Friday, a small victory. The case has again been deferred, this time until 18 September. Perhaps it will drag on for months. It will be tougher now for the family, however; they were secretly transported to Christmas Island, where receiving visitors will be difficult. But that’s the intention. The government doesn’t just want them gone – it wants to make a point. And it is prepared to destroy as many lives as necessary to do so. Everyone involved in this case on the family’s side desperately hopes to see a legal victory. And right now, that’s probably the only hope.
But the lawyers can’t save everyone – we know people are being secretly deported regularly. And even when legal challenges are successful, Labor and Liberal governments have closed the loopholes refugees rely on to make a last, desperate bid for protection. In the end, we’re going to need a political struggle. Because as long as the status quo remains, immense human suffering will continue.
Sri Lanka is not safe for Tamils
Home affairs minister Peter Dutton says that Tamils have nothing to fear from being deported to Sri Lanka. He says that the country is now safe and inclusive ten years after the end of the country’s internal war, of which the last months alone took the lives of tens of thousands of Tamils. But he also told Brisbane’s Courier Mail in early September that many Tamils are desperate to flee the place. ‘It is the reason Sri Lanka was the first country I visited after the election, to make sure we can keep these boats stopped. This threat is very real’, he said.
Is anyone seriously to believe that a country from which many Tamils are desperate to flee is a safe place to which they should be deported? It is well documented that Sri Lanka remains unsafe for fleeing Tamils who had links to the Liberation Tigers of Tamil Eelam or who engage in political activity oppositional to the military or the chauvinist Sinhala-Buddhist state. One recent United Nations release is indicative. ‘[I]mpunity is still the rule for those responsible for the routine and systemic use of torture, and countless individuals are the victims of gross miscarriages of justice resulting from the operation of the PTA [Prevention of Terrorism Act]’, Special Rapporteur Ben Emmerson concluded after his latest mission to Sri Lanka. ‘The Tamil community remains stigmatised and disenfranchised, while the trust of other minority communities is being steadily eroded.’
Emmerson’s report also noted ‘distressing testimonies of very brutal and cruel methods of torture, including beatings with sticks, the use of stress positions, asphyxiation using plastic bags drenched in kerosene, pulling out of fingernails, insertion of needles beneath the fingernails, use of various forms of water torture, suspension of individuals for several hours by their thumbs, and mutilation of genitals’.
Many other public reports are available from such organisations as Human Rights Watch, Amnesty International, the International Crisis Group, People for Equality and Relief in Lanka, Journalists for Democracy in Sri Lanka and the Adayaalam Centre for Policy Research. They point to an indisputable fact: the Tamil nation remains persecuted by the Sri Lankan state. There are clear grounds, based on the conclusions of these organisations, to reject the testimony of the home affairs minister. And there are grounds to reject the entire process that successive governments have used to determine the veracity of the claims of asylum-seeking Sri Lankan Tamils.
But there are more important reasons to do so than those relating to the country reports of the UN and other organisations. These reasons relate to the historic and ongoing systematic oppression of the minority Tamil nation on the island. State oppression and the social and constitutional marginalisation of Tamils has increased every decade since the 1950s. This is important to understand because, while it may be true that not all Tamils returned to Sri Lanka will be raped, tortured or disappeared, the Tamil population is facing a silent genocide – a systematic attempt to erode the foundations of their national life through colonisation, economic strangulation and one of the most intense military occupations in the world.
The oppression and genocide also predate the country’s so-called civil war between the Tamil Tigers and the Sri Lankan armed forces, which officially started in 1983. It is the basis of the more appropriately named national liberation war, which was launched only after all non-violent avenues of securing Tamil equality were blocked by successive Sri Lankan governments.
The majority ethnic group in Sri Lanka is the Sinhalese. Their language is Sinhala, their religion Buddhism. Tamils, who make up about 10 percent of the population, speak Tamil. They are generally Hindu, with Catholic and Muslim minorities. Although they are a minority overall, Tamils are the majority in the north and the east of the island. Mirjam Weiberg-Salzmann, from the University of Münster in Germany, has explained the growing chauvinism of the Buddhist clerical order after the country’s independence in 1948, and an increasingly reactionary bond of religion, ethnicity and state power directed against Tamils on the island.
Whereas in the 1940s only a small minority of monks had been politically active, in the 1950s monks from all the Nikayas (sects of the order) became involved … In the new history of Sri Lanka, the Tamils constituted a permanent and existential threat … The sangha [Buddhist clerical order] demanded active steps for the protection of Buddhism and attempted to institutionalise the traditional connection between religion and politics … The parliamentary elections of 1956 provided a large forum for the monks, which helped them spread their ideas.
In the election campaign Tamils were branded parasites and the ‘death knell’ of the Buddhist Sinhalese, and hence a limited use of violence was supported … Sinhalese was declared the sole national language. From the 1960s ‘Sinhalese’ and ‘Buddhist’ became synonymous terms, and religious activities became a necessary criterion for qualification to a political post and an indispensable element of election propaganda. State and nation were henceforth defined by (1) Buddhism, and (2) Sinhala-ness.
The point is that religious extremism in Sri Lanka is not confined to marginal sects; it very early became part of the state order and a defining element of mainstream politics. The extreme form of Sinhalese-Buddhist nationalism was codified in the 1972 republican constitution, which declared the country a ‘unitary state’ – one in which only the Sinhalese could claim the right to self-determination.
‘Sri Lanka means “Holy Ceylon” and designates precisely the messianic chauvinism that is inseparable from Buddhism in the island’, the late international relations scholar Fred Halliday wrote in 1973. ‘For religiosity and racism cannot be dissociated in Ceylon: the local brand of Theravada Buddhism claims … that the Sinhalese are a “chosen people” and that Ceylon is their sacred island, divinely elected to its unique historical and spiritual destiny by Buddha himself. This wretched mystification naturally excludes the Tamils and other minorities from any equal role in national life.’
Successive Sri Lankan governments have adhered to this vision not only in theory, but in practice. Anti-Tamil pogroms were a feature on the island prior to the national liberation war. In 1956, 1958, 1961, 1974, 1977, 1979, 1981 and 1983, thousands of Tamils were massacred, raped, tortured and burned alive – all with the collusion of the Sri Lankan police, military and security forces. Tamil businesses were destroyed in the south and east of the island. Hundreds of thousands were displaced in their own country or made refugees internationally.
From the mid-1980s onwards, the Tamil Tigers, an organisation built by radicalising Tamil youth, led the national liberation struggle. The organisation was supported by an overwhelming majority of Tamils in the traditional homelands desperate for self-determination. The Tigers built a de-facto state and were the de-facto government in the north and the east of the island. The entire Tamil population was drawn into its purview.
In 2008-09, after nearly thirty years of armed resistance to the Sinhala-Buddhist state’s project to destroy the Tamil nation, the Tigers were militarily defeated. Tens of thousands of civilians were murdered indiscriminately in a genocidal offensive by the Sri Lankan military. Thousands were disappeared out of suspicion of being involved in the national liberation movement or for being members of the Tigers – these included social workers, teachers, police officers and more, as well as soldiers in the war.
Ten years later, not one officer or political leader involved in ordering or carrying out the genocide has faced justice. They walk freely as national heroes. And the Sri Lankan state’s hostility remains. Tamils in traditional homelands are under surveillance and risk harassment or worse from the Sri Lankan state if they stand up for their rights. Importantly, and the fundamental reason why the place is not safe, the longstanding project of the Sinhalisation of Tamil areas continues – the project of demographically destroying the Tamil people’s claim to a geographically contiguous homeland that is politically recognised.
The military is now deeply embedded in civilian and economic life in the north and east of the island. It even has a hand in running kindergartens for Tamil children. This is the greatest threat to most Tamils in their homelands: the disappearance of a nation under the boot of a chauvinist state. In this regard, their plight is analogous to other oppressed nations suffering at the hands of reactionary ruling classes that have developed chauvinist states within world imperialism – Palestinians at the hands of Israel, for example, or Kashmiris under the gun of Narendra Modi’s India.
For more on the situation Tamils face in Sri Lanka see:
Adayaalam Centre for Policy Research
Journalists for Democracy in Sri Lanka
People for Equality and Relief in Lanka
Callum Macrae, No Fire Zone (documentary film)
Permanent Peoples’ Tribunal on Sri Lanka final judgement (available at ptsrilanka.org)