SYDNEY, Australia — Visitors arriving by boat at remote northern islands off this island continent who ask whether they have reached Australia might get a noncommittal reply, such as: “That depends.”
It depends on whether they plan to seek asylum, in which case their future rests on whether the island has been designated an “excised offshore place.” If it has, they are not allowed to apply for visas and must leave the island immediately, unless the immigration minister uses the office’s discretionary powers to decide otherwise.
When 14 Kurdish Turks anchored their leaky 40-foot fishing boat on Melville Island, 50 miles north of Darwin on Nov. 3, they were relieved to hear that they had reached Australia. But five hours later, they were being towed out to sea into Indonesian waters by Australian military personnel yelling “go Indonesia.”
The 14 Kurds now languish in detention in Jakarta, and it is possible that they may be returned to Turkey.
Indonesian immigration department spokesman Ade Dachlan told the Australian that he would examine assertions by the Kurds that they had been treated roughly by Australian authorities.
“What do they think Indonesia is, a trash bin for these people?” he asked the newspaper.
As Kurds fleeing Turkish rule, it was clear that the men were seeking asylum under the 1951 Refugee Convention, human rights activist said.
But hours after hearing of their arrival in Australia, Immigration Minister Amanda Vanstone instructed Maj. Gen. Michael Jeffery, the governor general, to sign regulations retrospectively to excise Melville Island and more than 3,000 other islands from Australia’s “migration zone.”
The regulation was overturned by the Senate the following week for a period lasting until June, but the move did not come in time to help the Kurdish asylum seekers, whose fate had been sealed the moment they reached Australia.
Sen. Brian Harradine, an independent who voted against excision, said he was concerned that more parts of Australia might be excised in the future.
“I wonder if my state of Tasmania is vulnerable to excision if too many people start arriving there,” he told The Washington Times. Tasmania is an island off southeast Australia.
Mr. Harradine also expressed concern that “border protection” seems to focus exclusively on boat arrivals, with “far less emphasis given to threats to our security from people who arrive by air.”
The government is reported to be seeking legal advice to override the Senate and find ways to excise islands on an ad hoc basis as boats approach. In other words, if a refugee boat reached Melville Island between now and June, emergency measures could be put in place to excise one island or 10 islands, rather than 3,000 offshore islands.
After an upsurge in the arrival of boat people — which led to the MV Tampa crisis in 2001, in which 433 boat persons from Afghanistan, Iraq and Sri Lanka rescued by a Norwegian vessel were refused asylum in Australia — the government enacted laws banning certain remote islands for the purposes of migration, although they remain part of the country’s sovereign territory.
It excised Ashmore Reef and Cartier Island in the Timor Sea, Christmas Island and Cocos Island in the Indian Ocean, as well as offshore resources and other installations in September 2001.
The government went as far as temporarily excising four islands off west Australia late last year when a boat was sighted sailing toward them. When it was established that it was a fishing vessel carrying eight crew members, the “excision” was lifted.
Proposals for further excisions have been met with opposition in Parliament.
Nicola Roxon, then shadow immigration minister and now shadow attorney general, observed that the policy of excising islands may have had the unintended effect of encouraging potential people smugglers to head directly for the Australian mainland.
Critics say the new law may have reduced the number of boats filled with refugees arriving on Australia’s shores, but it contravenes the Refugee Convention and has created uncertainty among local residents.
“We consider that Australia has shirked its responsibility, not only refusing to hear the claims of the persons when they were at Melville Island but also [by] transferring responsibility for those asylum seekers to [Indonesia,] which has not signed the Refugee Convention,” Michael Gabaudon, the representative of the United Nations High Commissioner for Refugees in Australia, told the Australian Broadcasting Corp.
“So we do consider that this action clearly puts Australia in breach of its obligations under the Refugee Convention,” Mr. Gabaudon said.
Analysts say the move to excise islands could prove dangerous for Australia by giving the impression that the government does not care about these remote pieces of land.
“Some countries such as Indonesia and Papua New Guinea may read the Australian policy as indifference towards these islands so as to give the impression that Australia is not genuine about asserting its sovereignty there. … This may encourage other countries to consider asserting claims over these islands,” said Donald R. Rothwell, an associate professor of international law at Sydney University.
Mr. Rothwell argued that in islands in the Torres Strait, where there is an ongoing independence movement, excision would only further discontent.
“It may contribute to a view among the islanders that the Australian government may not be too concerned if they were to attempt to claim some form of independence,” Mr. Rothwell said.
To allay some of this concern, the government in 2002 put together an information kit with a brochure, posters and a video intended to reassure islanders living off northern Australia.
“I have been concerned the indigenous and nonindigenous people living in the many islands across the top of Australia might interpret the proposed migration zone as affecting them,” said the architect of the policy, then Immigration Minister Philip Ruddock, who is now the country’s attorney general.
However, it is not clear whether the information kits have made any difference.
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