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To Close Camps, Australia Must Not Send Asylum Seekers Back to Danger

Following reports of forced deportations from Manus Island, Jane McAdam, director of UNSW’s Kaldor Centre for International Refugee Law, explains why asylum seekers at the Australian-run offshore detention center have not had a fair chance of gaining refugee status.

Written by Jane McAdam Published on Read time Approx. 4 minutes
A man walks between tents at Australia's regional processing center on Manus Island in Papua New Guinea. AFP/REFUGEE ACTION COALITION

Among the world’s liberal democracies, Australia has one of the most draconian approaches to refugees.

While U.S. President Trump’s refugee ban shows a blatant disregard for fundamental legal and moral principles, Australia has been paving the way through decades of invidious and insidious measures that undercut the right to seek asylum and the obligation to protect those at risk of persecution or other serious harm.

For the past five years, Australia has refused to process or settle asylum seekers who arrive by boat, instead sending them to the Pacific island countries of Papua New Guinea (PNG) or Nauru.

Countless reports have detailed the inadequacy of their living conditions in the offshore detention camps, the highly detrimental impacts on their mental health, and the lack of legal safeguards. Many have been waiting for decisions on their fate for years. The Australian government has made clear that even those found to be refugees will never be allowed to come to Australia.

Stuck in limbo, they are reliant on other countries for resettlement solutions. So far, such offers have been few and far between. An agreement struck with U.S. President Obama to resettle 1,250 refugees from the islands was labelled a “dumb deal” by President Trump, although U.S. officials remain in PNG and Nauru assessing their situation.

In April 2016, a unanimous decision by the PNG Supreme Court found that it was illegal and unconstitutional to detain asylum seekers at the Australian-built detention center on Manus Island in PNG, and that detention must immediately cease. The center still has not closed; this week, a senior Australian official suggested that it would shut by the end of the year.

Under pressure to close the center, and with uncertainty about the resettlement of refugees to the U.S., reports surfaced last week that asylum seekers who were determined by PNG authorities not to be refugees were being deported. This should ring alarm bells for any international refugee lawyer.

While I cannot comment on the specific cases of the men concerned, the lack of substantive and procedural safeguards in PNG’s refugee status determination system gives me little confidence that their claims have been adequately considered.

PNG’s refugee status determination process falls far short of the standards required by international law to ensure that people in need of protection receive it. For a start, PNG law does not contain any provision protecting people from refoulement – that is, from being removed to a place where they would face persecution or other serious harm.

Instead, the PNG immigration minister has a discretionary power to decide that someone is a refugee. While the process for determining this is delegated to immigration officials, he has the ultimate say.

The result is a process that is inconsistent with international law in a number of significant respects. As such, the capacity of PNG’s system for recognizing and protecting refugees is thrown into doubt, and there is a serious risk that the forcible removal of asylum seekers from PNG violates international law.

First, the refugee definition used in PNG’s Migration Regulation excludes many more people than the 1951 Refugee Convention allows. The Refugee Convention says that people who are suspected of very serious crimes, such as war crimes or crimes against humanity, can be denied refugee status. These are very strict and limited grounds, which countries cannot extend to other groups. Yet, in PNG, someone who has “exhibited a demeanour incompatible with a person of good character and standing” can be denied refugee status. This is a blatant violation of international law.

Second, asylum seekers’ claims are assessed according to the Refugee Convention, but not against PNG’s obligations under international human rights law, known as “complementary protection.” This means that there is no consideration of whether they will face a real risk of being arbitrarily deprived of their life, tortured or exposed to cruel, inhuman or degrading treatment or punishment if sent home. This is another blatant violation of international law.

Third, PNG’s asylum system has inadequate procedural safeguards. The decision-making capacity of PNG immigration officials varies. Asylum seekers whose claims are unsuccessful face limited and unclear prospects for review. Even if their claims are reviewed, the ultimate decision rests with the minister. According to the PNG Migration Act, any decision the minister makes relating to the grant or cancellation of an entry permit, or the removal of a person from PNG, “is not open to review or challenge in any court on any ground.” In Australia, you can challenge a parking fine or a speeding ticket in court. In PNG, you can be sent back to persecution, violence or even death without that opportunity.

We mustn’t forget that the asylum seekers whose lives are at stake are only in PNG because of the Australian government’s offshore processing policy. It is the Australian government that has exposed them to a deficient refugee status determination regime which cannot guarantee their safety. Australia retains legal and moral responsibilities for their situation, and should be concerned that PNG’s violations of international law could also become our own.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.

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