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Offshore Processing Of Asylum Seekers – Is Australia Complying With Its International Legal Obligations

INTRODUCTION:

The Australian government has used an offshore processing practice with respect to asylum seekers to Australia since 2001. Under an agreement known as the Pacific Solution, Australia uses Nauru and Papua New Guinea’s Manus Island for the purpose of processing of asylum seekers outside of Australia. It is known that the practice of offshore processing was devised by the Australian government for the purpose of deterring the arrival of asylum seekers by boat to Australia and instead that such refugees be transported to the islands where they can stay in refugee camps while their refugee claims are processed. At the time of its inception, the Pacific Solution was used to process asylum claims of refugees from Afghanistan but over the years the same policy has been used to process the refugees from other parts of the world. Since 2013, the offshore processing practice has been applied by the Australian government under the Pacific Solution agreement wherein the asylum seekers who arrive to Australia by boat are transported to Papua New Guinea where their refugee claims are processed. This policy has been problematic for a number of reasons, including those involving human rights violations of the refugees and the racialised immigration policy.

The offshore processing practice of the Australian government has roots in the approach of the country to the refugees coming to it in boats and goes back to 2001 when a Norwegian freighter called ‘Tampa’ had rescued hundreds of asylum seekers from a boat but the Australian government had refused to let the asylum seekers land at Australia. The Pacific Solution was then entered into between Australia and Papua and New Guinea under which agreement, offshore processing centres were established on these Pacific islands on Australia’s behalf and the passengers rescued by the Tampa were taken to the centres.

The policy of the Australian government is controversial because it involves a criminal justice approach to the refugees and asylum seekers by keeping them in detention centres. Moreover, as refugees are made to live in detention centres, they may be deprived of some of their rights under the international law. For instance, research has shown that refugees in offshore detention centres under the Pacific Solution did not enjoy the same rights as Nauruan citizens and they did not have access to employment or education, or the freedom to live outside of the detention centres. The policy of offshore processing is not just problematic in the context of the international law related to refugees, but also in the context of the principles of due process and the rule of the law. With respect to the offshore processing practice of the Australian government, the High Court of Australia has held that Tamil asylum seekers who were denied refugee protection had a right to have their determinations made in accordance with the rules of procedural fairness and general principles of law as per Australia’s Constitution and common law tradition that include guarantees against administrative unfairness and the arbitrary use of power; the cases were Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth. Specific issues related to offshore processing centres for refugees relate to human rights obligations of states, legitimacy of the policy in the light of the international law as well as domestic constitutional law related to due process and rule of law, and legality. These and other issues are discussed in this essay. The principal question that this essay asks is whether the setting up of offshore processing facilities leads to violation of Australia’s obligations under the international law.

The international law on refugees

The Convention relating to the Status of Refugees 1951 (Refugee Convention 1951) and the Optional Protocol relating to the Status of Refugees 1967 (Optional Protocol 1967) have created the international law on refuge and asylum. The term ‘refugee’ is defined in Article 1(A)(2) of the Refugee Convention 1951 as a person who needs protection from his own country in the form of refuge in another country based on a well-founded fear of being persecuted in his own country. The Refugee Convention 1951 is the principal international law that lays down the structure for the rights of refugees and obligations of the states to protect refugees and to grant asylum under certain circumstances. The United Nations High Commissioner for Refugees (UNHCR) is responsible for the implementation of refugee the Refugee Convention 1951 and its Optional Protocol 1967. Host states, that is states that have provided asylum to refugees, are bound under the provisions of the international law contained in Refugee Convention 1951 to protect the civil and human rights of the refugees. Thus, refugees are entitled to rights related to housing, and medical care, and even livelihood opportunities under the Refugee Convention 1951.

As a signatory to the Refugee Convention 1951, Australia is bound by the rights to people seeking asylum and people found to be refugees under the convention. Article 14 of the Universal Declaration of Human Rights provides that it is the right for a person to seek asylum from persecution in other countries and this is the basis for the Refugee Convention 1951 rights that Australia has accepted. There are a number of rights and safeguards that are included in the Refugee Convention 1951. Asylum seekers have the right to access courts (Article 16). Refugees have economic and social rights such as rights regarding employment and welfare and other such rights in Articles 17–19 and 20–24 of the Refugee Convention 1951. The Introductory note to the Refugee Convention clearly provides that people who seek asylum in other countries should not be penalised for seeking such protection and Article 31 of the Refugees Convention 1951 specifically notes that states will not impose penalties on refugees or asylum seekers who enter without authorisation. This is in recognition of the fact that at times, seeking refuge may require that the individual breaches immigration rules of a country. This right may be engaged in the use of offshore processing facilities if they are in the form of detention centres as in the case of Australia. An important right contained in the Refugees Convention 1951, and relevant to this essay is based on the customary international legal principle of non-refoulement; thus Article 33 provides that states shall not “expel or return (‘refouler’) 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.” As per this right, refugees and asylum seekers should not be forced to go back to their country of origin or any other place where there is threat to their life or liberty.

Australia is also bound by the international law obligations under other human rights treaties like the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and International Covenant on Economic, Social and Cultural Rights. These treaties also create certain human rights obligations that are engaged in the case of offshore processing of refugees in Australian practice. For example, there are also children amongst those who are being kept in offshore detention facilities or refugee centres. This engages the Convention on the Rights of the Child.

However, one of the concerns regarding the use of offshore detention centres in Papua and New Guinea is that these countries have not signed all of the human rights treaties as Australia has and they are not bound by the same obligations that Australia is bound to; this opens up the question as to whether Australia would be violating its own obligations to refugees’ human rights by sending them to locations where such human rights are not binding obligations for those governments. For instance, Nauru has not signed the International Covenant on Economic, Social and Cultural Rights as yet. Moreover, at the time when the 2001 policy was first established in Papua and Nauru, while the former was a signatory to the Refugee Convention 1951 albeit with significant Reservations, Nauru had not even signed the treaty.

Australia on the other hand, has signed all of these treaties and is bound by the human rights principles contained in them. For instance, the International Covenant on Civil and Political Rights, Article 9 provides that there is right to not be subject to arbitrary arrest or detention and to be treated with humanity and respect for the inherent dignity (Article 10). The principle of non-refoulement is clearly made out in Articles 6 and 7 of the convention. The Convention on the Rights of the Child contains rights that are specifically related to children, and are pertinent to the issue at hand. These rights include the right to not be separated from their families (Article 9). Moreover, the same convention also provides that any decisions that are made for children should be in accordance with the best interests of the child (Article 3).

Finally, the responsibilities and duties of states to protect refugees and asylum seekers also arise from the principle of Responsibility to Protect recognised by the Outcome Document by the World Summit in 2005 even if there are economic and political costs of refugee protection. In particular, the Responsibility to Protect principle is engaged in genocide, war crimes, ethnic cleansing and crimes against humanity, which lead to massive refugee crises as seen in the case of Syria.

Impact of politics and media discourse on the immigration policy of Australia

Asylum and refuge experience in Australia is also coloured by the media and political discourse on immigration in Australia. In general, asylum seekers in Australia have been subject of anxieties about security, unemployment and demographic change and this discourse is seen in the political statements as well as the media reports in Australia. The terrorist events of September 11, 2001 against America, have also had an impact in the way refugees and immigrants from Arab countries or Muslim countries have been described in both media and political discourse as threats to the security of the nation which led to important changes in law and policy. Generally, the government has been able to legally divide the rights of refugees resettled in Australia from camps and settlements abroad and those who had arrived without prior permission and are illegal entrants. Consequently, refugees coming into Australia without permits have come to be labelled as illegal entrants even when they are fleeing conditions of persecution of humanitarian crises from their home countries, as is the case with refugees from Syria. It has been argued that the increased negative reporting on Muslims in the media has led to the popularisation and greater acceptance for immigration control policies involving criminal justice policies like detention.

News reporting in Australia on crimes has also involved negative reporting related to ethnicity and crime as noted by Collins and Reid who found that perceptions around youth crime in Australia can take ethnic connotations, based on news media reports that may use language emphasising on the ethnicity of the criminals if they are from Asian, African or Arab ethnicities. Even refugees and immigrants can be portrayed as perceived as anti-social elements because of the media reporting and the consequent building up of the popular imagination around ethnicity and crime. Therefore, this can have significant impact on immigration policy and treatment of refugees and asylum seekers.

Australian response to refugees and asylum seekers also needs to be understood against the background of its immigration experience and demographic or ethnic issues. In the recent years, there is an increase in immigration to Australia from Asian and African countries, which has led to issues related to demographic changes, the issue of identities and the ‘otherisation’ of immigrants that come from countries on non white ethnicities. In the Australian context, the issue of immigration and the perception of the people to immigrants is also linked to identity, and there is a section of populace that sees European identity as different and distinct from the Asians and Arabs, leading to political tension around the issue of immigration. Consequently, there is an increase in popular usage of terms like “unwanted invader” with respect to Muslim immigrants and refugees in particular, which also impacts the experience of immigration in Australia. Refugees from Islamic countries have also been called the ‘boat people’, emphasising on the ways in which refugees are entering the country in illegal ways. This conceptualisation of refugees and asylum seekers as illegal entrants into the country has an impact on the way perceptions and later policy towards immigrants is formulated in Australian society.

Perceptions towards refugees may even be constructed negatively as refugees may be perceived to be a drain on national resources, and there may be concerns about providing employment to refugees, and the social and economic challenges to the state due to this. These perceptions may lead to the more popular acceptance of policies that are not in line with the international human rights obligations of Australia even through these policies may be thought to be good for Australia as it allows them to limit asylum into their country.

Australian response to the asylum issue: Is Australia breaching its obligations

In Australia, the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), led to the changes in the Migration Act 1958 (Cth), which allowed the government to start a practice of offshore processing of refugees in 2001. The process of offshore processing had in fact started before relevant changes were made to the Australian laws and the laws were retrospectively changed to allow for the offshore processing of asylum seekers and refugees. Australia’s policy to refugees coming by boats came under not just international but also domestic criticism making the government give up the policy in 2008 to take a more ‘humane’ approach to refugees and asylum seekers. However, the policy was eventually reinstated.

With respect to the offshore processing policy in Australia, this is applied only to those who do not arrive to Australia through legitimate entry points; these are the people who are coming in boats to Australia and then seeking entry or asylum in the country as opposed to people who come to Australia with valid visas and then apply for asylum. This is a small number of people and the reasons why they try to enter Australia without valid visas is usually because they were unable to obtain visas, unable to reach Australia by air, and unable to apply for asylum through the humanitarian programmes, leaving them with little choice but to attempt to reach Australia by boat to claim asylum without entering with a valid visa. The Australian government has openly asserted that their policy of putting such arrivals in detention centres or offshore processing centres is to deter them from seeking asylum in Australia and for slowing down the process of asylum applications into Australia.

Australia is not the only country to have thought of offshore processing facilities for asylum seekers, and there are others, like the United Kingdom and Germany where such proposals have been made but not implemented. Therefore, Australia has taken steps that have been avoided by the other countries. In the running of the detention centres by private companies who are paid by the Australian government, the conditions are said to be so abysmal that the Australian policy has led to international criticism, including by the UNHCR. The European Union on the other hand has not taken any such steps because it is considered that such offshore processing detention facilities would pose serious challenges to human rights. Considering this, the question of whether Australia is breaching its international law obligations becomes pertinent. The Australian response to asylum has been criticised, particularly in context of granting asylum to refugees from Syria wherein Australia used the grounds of economic costs and national security concerns. The Australian immigration and asylum response has also been criticised for its linking of the immigration policy to criminal justice policy. This has involved the use of detention policy for asylum seekers and refugees and goes against the principles of international law. The criminal justice response has been made more complex because Australia adopted a purposive strategy for restricting immigrants from Islamic nations and using justifications based on Islamic fundamentalism and terrorism to justify these policies. As part of the criminal justice policy, Australia used methods of detention, deportation and denaturalisation of immigrants by linking these methods to security.

The problems with the Australian policy and practice towards asylum seekers came particularly into international attention due to the Australian government response to the Syrian refugee crisis, which among other things was criticised as being too slow and ridden with red tape issues. Although Australia had pledged to take in 12000 refugees, it took a long time to process the applications of the Syrian refugees for asylum. The Syrian refugee crisis was a grave human rights situation and the UNHCR responded to the crisis by organising aid and camps for refugees in neighbouring countries and also requesting western countries to take in refugees. However, in Australia, despite there being an agreement on the part of the Australian government to take in refugees from Syria and grant them asylum, Australian government gave the reasons of national security to justify their slow response in granting asylum to the refugees. The Australian response to the Syrian refugee crisis drew attention because the extent of the humanitarian crisis in Syria was significant and there were several countries and other non governmental organisations that were struggling to bring aid and relief to Syrian refugees around the world.

As per the offshore processing practice of the Australian government, all and not some, asylum seekers who come to Australia by boats are diverted to the Pacific islands under agreement with Papua and New Guinea. The number of refugees who are diverted to the detention centres also include children. Therefore, some of the concerns regarding the refugee offshore processing involve the breach of Australia’s obligations under the Convention of the Rights of Child as children are also removed from the care of their parents and put in separate detention centres.

Although Australia has signed the Refugee Convention 1951 and is bound by its provisions, there are some actions that are in clear breach of the convention. This is particularly relevant to the principle of non-refoulment. Australia has amended its law through the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), in which Section 197C states the obligation of non- refoulment is irrelevant in relation to the power of removal of refugees, and that Australia may authorise removal of refugees even if an assessment of risks in relation to removal has not been undertaken.

Australia’s use of offshore processing of asylum seekers is also problematic because the countries where the offshore facilities are located are not always bound by the international law obligations as they have not signed the relevant treaties, which leaves the question as to whether any violations of refugee rights in these locations would make Australia liable. According to one observation Australia is still bound to the international obligations for human rights of refugees even if they are placed in offshore locations; thus it has been observed:

“If Australia still has ‘effective’ control, then it must continue to ensure asylum seekers are treated in a manner consistent with the human rights Australia has agreed to be bound by, regardless of the obligations the designated states have agreed to be bound by”.

The breach of international law by the offshore processing units can be treated as a breach of the law by Australia as per the principles in the International Law Commission’s Responsibility of States for Internationally Wrongful Acts, adopted by the General Assembly Resolution 56/83 (2001). However, due to the restriction on prosecution related to offshore violations of refugee rights, there is a problem for refugees to actually access justice in Australian courts when their rights are violated in the offshore locations. This is a clear contravention of the Refugee Convention 1951 which provides that the asylum seekers have rights to access courts as per Article 16.

Moreover, the question of who is responsible for the protection of rights of the refugees, Australia or the offshore location country, is usually left unclear in the agreements and memorandum of understanding signed by Australia and Papua and New Guinea and Nauru. This is another area of concern because while Australia has signed the relevant international treaties on refugee rights without reservations, the other parties to the Pacific Solution have not done so for all the treaties concerned. A UNHCR report on one of the offshore processing locations in Papua has already flagged a number of concerns related to human rights of the refugees. The report mentions that despite the Memorandum of Understanding between Australia and Papua and New Guinea, there is no codified procedural guidance for refugee status determination and only one experienced official responsible. The report also flagged concerns regarding the rights of children, and family reunification, as there were inadequate protections for children, and little to no guarantees of children being reunited with their families. Another issue of concern flagged in the report related to the principle of refoulment, with the report finding evidence that the refugees were being kept in poor detention conditions, and were also under pressure from authorities that encouraged them to return to their country of origin. The UNHCR report claimed that these practices may amount to breach of Article 33 of the Refugees Convention 1951.

Conclusion

Australian response to the asylum problem in the form of offshore processing of asylum applications runs foul of its international law obligations on a number of issues. First, the locations selected by Australia are in countries that may have varied obligations under international law because they have not signed the relevant treaties or if they have signed them, there are reservations made. In such a situation, Australia would be still liable for human rights violations even if they occur extra terrestrially. However, Australia has made several changes to its laws that allow it to restrict the rights of refugees and their right to access its courts. Australian practice is also contrary to the international law of non-refoulment because the refugees are either encouraged to go back to their countries without risk assessment or they are being deterred from seeking asylum by making detention conditions unfavourable to the refugees or lengthening the process of asylum application. Therefore, there is a clear violation of two rights under the Refugee Convention 1951, which are right to access to courts and right to non-refoulment. It is also a matter of concern that Australia’s actions amount to use of criminal justice policy as detention centres are being used, in contravention of the Refugee Convention 1951. Moreover, these policies seem not driven by the concerns regarding overwhelming numbers of refugees, because Australia’s intake of refugees is very small compared to many countries; rather, these are driven by social perceptions of demography and ethnicity.

Authorities

Banković and others v Belgium and others [2001] 52207/99 ECHR 890.

Books

Carrera S and Guild E, Offshore processing of asylum applications, CEPS Commentary (Brussels: Centre for European Policy Studies 2017).

Cohen R, 'From sovereign responsibility to R2P' in WA Knight, F Egerton (ed), The Routledge Handbook of the Responsibility to Protect (Oxon: Routledge 2012).

Foster M, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge: Cambridge University Press 2007).

Hathaway JC, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press 2005).

Karlsen E, Australia's offshore processing of asylum seekers in Nauru and PNG: a quick guide to the statistics (Parliamentary Library 2015).

Lewis C, UNHCR and International Refugee Law: From Treaties to Innovation (Oxon: Routledge 2012) Long K, Forced migration research and policy: overview of current trends and future directions (Oxford: University of Oxford 2010).

Wodak R and Boukala S, Talking about solidarity and security in the age of crisis: The revival of nationalism and protectionism in the European Union: A discourse-historical approach in EU foreign policy through the lens of discourse analysis (Oxon: Routledge 2014).

Journals

Archbold LJ, ‘Offshore Processing of Asylum Seekers-Is Australia Complying with Its International Legal Obligations’ (2015) 15 QUT L. Rev. 137.

Collins J and Reid C, ‘Minority youth, crime, conflict, and belonging in Australia’ (2009) 10 (4) Journal of International Migration and Integration/Revue de l'integration et de la migration internationale 377.

Crock M and Ghezelbash D, ‘Due process and rule of law as human rights: the high court and the" offshore" processing of asylum seekers’ (2011) 18 (2) Australian Journal of Administrative Law 101.

Döner P, Özkara A and Kahveci S, ‘Syrian refugees in Turkey: numbers and emotions’ (2013) 382 The Lancet 764. El-Enany N and Keenan S, ‘From Pacific to traffic islands: challenging Australia's colonial use of the ocean through creative protest’ (2019) 51 (1) Acta Academica 28.

Fleay C and Hoffman S, ‘Despair as a governing strategy: Australia and the offshore processing of asylum-seekers on Nauru’ (2014) 33(2) Refugee Survey Quarterly 1.

Gibney M, ‘Asylum and the Expansion of Deportation in the United Kingdom’ (2008) 43 (2) Government and Opposition 146.

Hovil L, ‘Self-settled Refugees in Uganda: An Alternative Approach to Displacement?’ (2007) Journal of Refugee Studies 20.

Jacobsen K, ‘Refugees and Asylum Seekers in Urban Areas: A Livelihoods Perspective’ (2006) 19 (3) Journal of Refugee Studies.

McAdam J, ‘Australia and Asylum Seekers’ (2013) 25 (3) Int J Refugee Law 435.

McAdam J and Purcell K, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2008) 27 Australian Year Book of International Law 87.

McKenzie J and Hasmath R, ‘Deterring the “Boat People”: Explaining the Australian Government’s People Swap Response to Asylum Seekers’ (2013) 48 (4) Australian Journal of Political Science 417.

Noll G, ‘Visions of the exceptional: legal and theoretical issues raised by transit processing centres and protection zones’ (2003) 5 (3) European Journal of Migration and Law 303.

Parker S, ‘Unwanted invaders’: The representation of refugees and asylum seekers in the UK and Australian print media (2015) Myth and Nation 23.

Poynting S, Noble G and Tabar P, ‘Middle Eastern appearances:“Ethnic gangs", moral panic and media framing’ (2001) 34 (1) Australian & New Zealand Journal of Criminology 67.

Reports

UNHCR Regional Representation, Monitoring Visit to Manus Island, Papua New Guinea 23 to 25 October 2013 (UNHCR 2013).

Websites

Blackwell E, Peter Dutton Defends Australia's Slow Response To Refugee Crisis (Huffington Post 9 September 2016) http://www.huffingtonpost.com.au/2016/09/08/peter-dutton-defends-australias-slow-response-to-refugee-crisis

Taylor A, Why the language we use to talk about refugees matters so much (Washington Post 30 July 2015) https://www.washingtonpost.com/news/worldviews/wp/2015/07/30/why-the-language-we-use-to-talk-about-refugees-matters-so-much/?utm_term=.27f42179e86


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