When an asylum seeker vessel exploded on April 16 while being taken to Christmas Island, killing five people, many of the critically injured were first transported to an offshore oil rig before being transferred to hospitals on the mainland.
Thirteen of the "less seriously injured" passengers were taken directly to Darwin, according to the April 22 Sydney Morning Herald, and can now apply for refugee status. That is, they "will be treated as mainland arrivals as they did not enter Australia at an excised offshore place", according to a spokesperson for immigration minister Chris Evans.
The article reported the 29 people who were first taken to the oil rig will be denied their rights to claim refugee status, because they did not first land on the Australian mainland. Instead, they "landed" on territory excised by the then Howard government in 2001 for immigration purposes.
Access denied
It means they have no access to Australian legal rights, no access to appeal and — even if refugee status is granted — no guarantee they will be able to stay.
On April 22, refugee rights lawyer Julian Burnside QC told ABC Radio's AM: "The reason for excising bits from the migration zone was to remove the obligation to listen to the person when they say 'I want your protection'. They don't have a legal right under our law to ask for protection, even though they are in Australia."
Burnside commented on why the 29 were first taken to the oil rig: "It suggests that [the government is] looking for ways of denying some of the people the ability to apply for asylum."
"Because one thing is clear, if you take them to the mainland, they can seek protection", he said later that day on The World Today.
The revelation about the 29 victims has rightly raised criticisms of the federal Labor government's refugee policy, previously thought to be a humane departure from the draconian Howard years of mandatory detention and temporary protection visas.
Christmas Island is another territory excised by Howard and is home to the prison-like detention centre built during the Howard-era.
It was reopened by the Rudd government in September 2008. Rudd's immigration policy dictates that any asylum seekers found trying to reach the Australian mainland by boat will be "escorted" to the offshore detention centre to have their claims "processed".
It means the Rudd government has effectively maintained Howard's "Pacific Solution", pushing for a "fortress Australia" of zealous border security and taking all potential refugees to remote islands for processing.
Indonesian and Australian forces have also been intercepting boats at sea, turning them back to Indonesia, and arresting asylum seekers before attempting the journey.
Seventy asylum seekers were arrested in Indonesia on April 17; they will be sent back to their war-torn country of Afghanistan, according to the Melbourne Age on April 20.
Since the fatal explosion, a boat carrying more than 100 passengers believed to be also seeking asylum, has been under constant surveillance from the navy as it tries to make its way to Australian waters.
On April 22, another vessel was picked up south-west of Barrow Island. ABC Online reported the boat carried 32 asylum seekers from Sri Lanka. It was taken to Christmas Island.
Home affairs minister Bob Debus told media on April 21 that thousands of asylum seekers are in Indonesia and may try to come to Australia.
"I think it would be more accurate to say thousands", he said, adding with cruel disregard: "That's not to say they will make it, that's not to say they will eventually secure passage one way or the other."
Seven boats, carrying 306 asylum seekers, have been "intercepted" this year.
The Rudd government has jumped to blame people smugglers for the apparent "surge" in asylum seekers.
Labelling them a "scourge" and declaring on April 17 that so-called people smuggler can "rot in hell", Rudd is pushing for the prosecution of those who arrange the transport by sea for refugees to Australia.
"Prosecuting people smugglers is the most effective way of dealing with the problem of illegal movements of persons around South-east Asia and more broadly", Rudd said on April 20.
To achieve this, Rudd is improving ties with Indonesia, described during the Bali Process summit as "a transit country for illegal migration".
One alleged "people smuggler" will be extradited from Indonesia. Accused of bringing more than 900 people across the sea in 2001, he will be the fourth person prosecuted for "people smuggling" in Australia this year.
Two Indonesian men were charged for trying to smuggle 52 people into Australia, believed to be from Afghanistan. They crewed a boat discovered off the Northern Territory coast on March 14.
Risking their lives
However, according to Riz Wakil, it will do nothing to stop the dangerous journeys. Wakil came to Australia as an Afghan refugee in 1999.
"They are risking their lives for a better life", he told Green Left Weekly. "They are taking these measures, in leaky boats, just to be alive somewhere. That is the reason for the surge around the world, they don't want to be in these countries of war and danger and conflict. They just want to be able to live."
"People are coming to our shores for protection", Wakil said, "but while they are simply being picked up and taken to Christmas Island, they remain in the same situation of uncertainty and danger.
"The government needs to welcome all the refugees to our shores."
The Liberal opposition were quick to provide a false counter-position to the government, but merely pushed a more extreme version of Labor's anti-refugee agenda. Opposition leader Malcolm Turnbull said the apparent "surge" in asylum seekers arriving by boat was due to a "softening of border protection policy".
He has since called on the government to reinstate a form of the temporary protection visa system, which created uncertainty for re-settling refugees and denied them rights to family reunions.
"TPVs … or reinstating a different visa category for unauthorised boat arrivals, should certainly be high on the agenda", he said according to ABC Online on April 21.
The next day, opposition immigration spokesperson Sharman Stone attempted to fuel anti-refugee hysteria, saying cutting resources had allowed the asylum seekers to almost reach Australia "Why is it that area surveillance missed this boat?"
"We don't want them, it's bad in terms of the integrity of our borders", Turnbull told Radio National on April 20.
However, there essentially remains bipartisan support for mandatory detention, the Christmas Island detention centre and a crack-down on people smugglers.
Meanwhile, the Greens have called on the government to allow all asylum seekers attempting the journey to Australia to land on the mainland.
"It makes no sense to transport arrivees back across hundreds of kilometres of ocean to Christmas Island", Greens spokesperson Sarah Hanson-Young said on April 18. "Arrivees [must be] taken by the most direct route to the Australian mainland where their claims for asylum can be assessed."
However, even the Greens stop short of demanding that refugees then be allowed to stay, and do not acknowledge the real reason that so many people are fleeing their homelands to come to Australia.
Rudd, on the other hand, has been forced to acknowledge the real reason there is an increase in people trying to travel to Australia. It is what he calls "push factors": the wars in Afghanistan and Sri Lanka, worsening instability in Pakistan and the global economic crisis.
The continuing wars and growing poverty in the Third World will mean more boats and more asylum seekers. Yet, hypocritically, the focus remains on people smugglers rather than acknowledging Australia's role in these conflicts and ignoring international legal obligations.
No-one is 'illegal'
There is no such thing as illegal refugees. The 1951 UN refugee convention stipulates this, and also states that no asylum seeker should be discriminated against, whether they have the wrong papers, no papers, or on the basis of their method of arrival.
"There is nothing 'illegal' about the process of seeking protection from persecution", Refugee Council president John Gibson said on April 17.
Burnside told ABC Online on April 22 that the Rudd government cannot justify differential treatment of the 29 asylum seekers, and indeed any of the detainees of Christmas Island.
"Ordinarily, if a person gets to Australia and they ask for protection, we have an obligation under international and domestic law to consider their claim for protection, and if they are in fact refugees, well then we have an obligation to protect them", he said.
The federal government must fully recognise that people are fleeing conflict and danger perpetuated by wars that it is supporting. In acknowledging this, it must also move to accept all people travelling by boat to Australia as refugees and set up appropriate measures to bring them into the community and protect them from persecution.
"A genuinely humanitarian policy would welcome those asylum seekers", Refugee Action Coalition spokesperson Ian Ritoul said on April 20.
"We need a more proper and humane approach", Wakil said. "This should be a new beginning for refugees. Allow them to come and allow them to stay."