The announcement this morning by Immigration Minister Chris Bowen that ”the percentage of successful [Afghan] refugee claims is likely to be lower than in the past” is, from a legal perspective, a troubling one. Not only because Bowen appears to be prejudging cases for asylum but because if the Gillard government, for political reasons, has decided that it will push as many Afghani claimants back to their homeland as possible then the issue of Australia breaching its obligation not to send persons back to danger is also a live one.

That Bowen is acting for political rather than humanitarian purposes seems self evident. His comments about Afghan asylum seeker claimants are made in the context of the Gillard government lifting the Rudd government’s freeze on the processing of their claims — something introduced earlier this year. What Bowen appears to be saying is: well look, we are lifting the freeze but we are going to kick most of these people out anyway.

Australia has international human rights obligations under various treaties and conventions, including the Migration Convention and the Convention against Torture, not to return “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.  This is known as the principle of non-refoulement.

In other words, if the Australian government knows that it is sending someone from Afghanistan back to that country, and there is a likelihood that that person will be persecuted, tortured, subjected to cruel and unusual punishment or killed, then in moral terms those responsible for making that decision, and that is ultimately the minister for immigration, have committed a crime against humanity. And the decision to do so can be challenged through one of the UN committees, such as that which deals with cases concerning torture.

But of more immediate relevance to those Afghan asylum seekers now facing a return from an Australian detention centre to a hellhole much worse — the war-torn country from which they fled — is the Gillard government appears to be breaching fundamental principles of natural justice in its spinning of the message that it is taking a harder line on asylum claims. Bowen’s comments this morning are a manifestation of this attitude.

As the International Red Cross’s legal adviser Dr Cordula Droege notes in a 2008 paper: a “state that is planning to transfer a person to another state must assess whether there is a risk of violation of his or her fundamental rights, regardless of whether the person has expressed a fear or not. If the risk is considered to exist, the person must not be transferred. To ensure that the assessment is performed in a diligent manner and that the person in question will be duly heard, procedural obligations are essential.”

Droege notes that the “extent to which the potential transferee’s concern is well founded — that is, the existence of the risk — must be assessed on an individual basis”.

Bowen’ comments today and the Gillard government’s positioning on the issue of Afghan asylum seekers seems to suggest they have forgotten these fundamental principles.

CORRECTION: An original version of this story stated the immigration minister was Chris Evans. Chris Bowen is the new minister.