The April 9 announcement by immigration minister Chris Evans that, "effective immediately", Australia would suspend processing asylum claims by Afghans or Sri Lankans is in contravention of the 1951 Refugee Convention.
Processing of Afghan refugees' claims will be suspended for six months and those from Sri Lankans for three months. The Rudd Labor government has retained the option of extending the suspension.
Furthermore, the United Nations High Commissioner for Refugees has contradicted claims by Australian government ministers that other countries were also suspending the processing of asylum claims by Sri Lankans. The UNHCR also rejected suggestions that it was about to declare Afghanistan and Sri Lanka as safe for returned refugees.
The government's move will increase overcrowding and tensions at the Christmas Island detention centre. The government has sent more police to the island in readiness. The facility has, in recent weeks, been the scene of hunger strikes and a suicide attempt.
Article Three of the Refugee Convention requires signatories to apply its provisions "without discrimination as to race, religion or country of origin". By singling out asylum seekers from Sri Lanka and Afghanistan, the government is clearly violating this.
Amnesty International denounced the policy as "an appalling act of political point scoring … fundamentally inconsistent with Australia's international obligations".
When foreign minister Stephen Smith announced the new policy, he said: "So far as Sri Lanka is concerned, my advice is that a number of countries have over the last recent period effected a suspension, a small number, and I'm very happy to have provided to you those particular countries."
His advice seems to have been inaccurate. UNHCR regional head Richard Towle told the April 13 Australian:"I am not aware of any other countries in the industrialised world which have suspensions in place for asylum claims for people from these countries."
On April 15, Smith's office released a statement suggesting that Denmark was suspending the processing of Sri Lankans' asylum claims. But the Danish government pointed out they had suspended the processing of failed Sri Lankan asylum seekers because they considered Sri Lanka too dangerous to deport people to, the April 16 Australian said.
The UNHCR also dismissed Smith's claim that, because its assessments of Sri Lanka and Afghanistan were under review, it was about to declare these countries safe. The UNHCR is continuously reviewing its assessments of all countries.
Human Rights Watch said on April 15: "The blanket suspension of all applications from nationals of specific countries is discriminatory under the 1951 Refugee Convention and its 1967 Protocol, to which Australia is a party. Even if human rights conditions have improved in a country of origin, Australia is still obligated to provide individuals with an opportunity to claim asylum and to examine their refugee claims.
"In the cases of Afghanistan and Sri Lanka, however, Human Rights Watch's research shows that human rights conditions are far from stable or adequate, and that individuals and certain groups continue to face significant threats and to lack effective protection.
"For instance, women and girls, ethnic and religious minorities, media workers, civil society activists, opposition party members and supporters, and alleged militants may be at risk of persecution in Afghanistan and Sri Lanka."
Evans claimed "the Taliban's fall, durable security in parts of the country, and constitutional and legal reform to protect minorities' rights have improved the circumstances of Afghanistan's minorities, including Afghan Hazaras".
But an official of the Pakistani Federal Investigations Agency told the April 13 Australian: "Right now they're being persecuted on both sides of the border. In Quetta [in Pakistan], eight to 10 Hazaras are being murdered every week. If that's happening just in Quetta, magnify this problem all the way to central Afghanistan."
Professor William Maley, an Australian National University academic who specialises in the politics of modern Afghanistan, told the Australian: "If anything, the consensus among experts on Afghanistan is that the security environment has been deteriorating." He described Evans' claims as "loopy".
Sri Lankan refugees are predominantly from the Tamil minority. Echoing statements from the Sri Lankan government, the Australian government argues that since the military defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, peace and democracy have returned to the country.
Australian Tamil community activist Saradha Nathan described this as "ridiculous".
"The foreign affairs website's travel advice is 'highly violent, very dangerous, don't go'", she told Green Left Weekly. "The foreign affairs department says it's dangerous while the immigration department says it's OK there."
Since the Sri Lankan army defeated the LTTE (killing 30,000 Tamil civilians in the process), the Tamil-majority areas have been under harsh military rule. Hundreds of thousands of Tamils have been kept in concentration camps, others have disappeared.
Those released from the camps have been left destitute. Transmigrants from the Sinhala majority have been settled in former Tamil villages. Murder, rape and torture are routine.
Even in the Sinhala-majority areas, human rights abuses are widespread. Even former army commander General Sarath Fonseka, who led the anti-LTTE offensive, is now in jail for mounting an electoral challenge to President Mahinda Rajapaksa.
Nathan said 31 Tamils, part of a group of 89 asylum seekers transferred to Villawood detention centre in Sydney on March 27 after their claims were rejected, were "suffering pre-traumatic stress" while waiting to be deported.
"One showed me a bullet wound, another evidence of torture", she said. "Most have had family members killed. If these aren't genuine refugees, I don't know who is … One told me that being imprisoned was better than being sent back while another wanted to donate his organs before departure, so certain was he of being killed."
The April 13 Sydney Morning Herald said 30 Tamil refugees had escaped from the boat that has been in the Indonesian port of Merak since October. The Indonesian foreign affairs official in charge of negotiations, Dr Sujatmiko, told the SMH: "We believe that there has been an impact from the Australian government's policy of suspending processing."
Nathan confirmed that some of the Merak Tamil refugees had escaped. Others have been detained. On April 6, the refugees were told they had five days to leave the boat. However, on April 11 they were told that accommodation was not ready.
"Nothing happened", Nathan said. "You can imagine how traumatic it is. They don't know where they'll be sent, or whether they'll be behind bars. Most worryingly, we haven't been given an assurance that information will not be shared with Sri Lankan authorities, which is, of course, very dangerous for families in Sri Lanka."