The High Court decision announced yesterday throws serious doubt over the potential validity of offshore processing in Nauru and Manus Island, refugee experts have said.
The court’s decision yesterday, placing a permanent injunction preventing the deportation of two asylum seekers to Malaysia, has left the Gillard Government’s Malaysian Solution in tatters but what does it mean for the future of offshore processing in general? Immigration Minister Chris Bowen has referred to the “new test” that was applied to this decision, so what is it and how will it impact on our future asylum seeker policy?
John Gibson, barrister and president of the Refugee Council of Australia, told Crikey the decision poses a threat to offshore processing generally.
“It is not by any means sure that if any challenge was made to the Nauru and Manus Island declarations that it would necessarily meet the [High Court] test,” Mr Gibson said.
Referring to the Opposition spokesman Scott Morrison’s public comments after the release of the decision, Mr Gibson said:
“Morrison said deceitfully that the High Court had approved a Nauru declaration,” he said. “It did no such thing.”
Mr Gibson said the decision emphasised the requirements for a declaration under s.198A of the Migration Act, which include protection of human rights and protections from refoulement, would all have to be met by any offshore processing facility.
Section 198A(3) provides that when making a declaration for a country to complete offshore processing, the Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection.
The decision reaffirmed the importance of the Refugee Convention, Mr Gibson said.
“The High Court… has effectively confirmed that the Refugee Convention is essential to managing how people come to this country, and these standards have to be met, and the nature of the obligations entered into by third parties [nations] are going to be crucial,” he said.
The decision clearly stated that the declaration by the Minister that Malaysia provides asylum seekers access to ”effective procedures” for processing their asylum claims, ”protection” for persons seeking asylum and that it ”meets relevant human rights standards in providing that protection” was not valid under s198A unless the country concerned is legally bound by international law or its own domestic law to provide the access and protections set out in that provision.
Papua New Guinea is a signatory to the Refugee Convention, while Nauru also entered into the international treaty in June.
However, The Sydney Morning Herald journalist Philip Coorey has reported this morning government legal advisers’ beliefs that the full consequences of the decision are to “disqualify” Manus Island and Nauru as valid locations for processing.
The paper reported that the legal advice apparently indicates Papua New Guinea fails to comply with seven aspects of the convention. Uncertainty remains over Nauru, as Australia effectively completes the offshore processing for it.
Leading refugee barrister Julian Burnside QC told Crikey the decision made other offshore processing options more difficult.
“I don’t think [the government] will be able to legislate around it. The Greens won’t provide much help,” Mr Burnside said.
“There needs to be [legislative] changes [for the Nauru and Manus Island offshore processing to occur validly],” he said. “Nauru has no domestic legislation dealing with refugees, let alone legislation dealing with the way they are to be treated.”
Immigration Minister Chris Bowen has left open the option of processing asylum seekers in Nauru, and the re-introduction of temporary protection visas, The Age’s Michelle Grattan reported this morning.
Nauru is not a palatable option
The 10 000 people of Nauru and their scattered better educated citizens in Australia and elsewhere, will be hard pressed to provided trained assessors of asylum claims under the UN Convention , which Nauru only signed up to last June; last time the UNHCR assessed ONLY the Tampa caseload and Immigration processed the rest of the 1600 detained persons-a lot of them badly.The outcome was out of sight, out of mind injustice to vulnerable people and delayed freedom, and the return to unsafe Afghanistan of 420 harrassed and duped people including 20 Unaccompanied Minor children. To whom will the Minister delegate his responsibilities as Guardian of all Unaccompanied Minors?
What arrangements are mooted for a Nauru processing centre and what outcomes are guaranteed for those determined to be refugees needing resettlement? Will the Ombudsman and Human Rights Commissioner have full access to monitor arrangements and the well being of those deprived of their liberty for daring to seek Australian protection?Last time 61 6 people were resettled in Australia and 401 in New Zealand. What do the Australian survivors of Nauru detention have to say?
What are the budget implications of Australian processing on another country’s turf? Cost of rent? other sweeteners? Employment guarantees? Fly in fly out Immigration processing officers, casemanagers, legal advisors , health, education and social welfare professionals, “meaningful activities” organisers. The enhanced conditions and services implemented in places of detention in Australia under Labor and its immigration detention values cannot be diluted “offshore”. Will camp management be outsourced ? to Serco? another open cheque?
The return to a Temporary Protection visa for “genuine” refugees is obscene. Any sociological study of the damage done to those refugees who are now citizens, and of the collateral damage to their wives and children would make us hang our heads in shame. So cruel. So very unnecessary.
The pity is that few academics have chosen to research into the Australian Afghan, Iraqi and Iranian communities of former TPV holders to identify the horrible consequences which workers in the field can only partly tell.Have we alienated the children and relatives of those who were mistreated and scarred? Has the trauma been overcome? Have they lived up to their potential? are reunited families functioning well?
The TPV conditions denied holders freedom of movement, made them ineligible for basic settlement services like English classes and prolonged the separation of members of nuclear families leaving wives and children in very vulnerable situations without their protector and provider.Pure anti family policy. Also a breach of the UN Convention. The remittances sent off shore for their support amounted to many millions per year – money much better spent here in Australia.
Perhaps the Government could try taking a whole lot more refugees from Malaysia and encourage other refugee settlement countries (NZ, Canada, US) to take more too, thus pre-empting the need to get on a boat.
I posted the comment below under an article reporting media reaction to the High Court decsion but that article seems to have disappeared from the Crikey website, so I am posting it again. I agree completely with Fred above.
Predictably all the media pundits are viewing the High Court decision through the prism of ‘politics of sport’ and not taking pause to consider how the matter of continuing boat arrivals should be handled. It’s always been difficult to have any reasonable public discussion of options because the Opposition and the former Howard Government have been so successful in demonising boat-arriving asylum seekers and Labor, from Beazley onwards, have never had the courage to stand up to them and follow a humane rather than a punitive policy (although Rudd’s initial policy until he was panicked by Abbott wasn’t too bad).
It seems to me that there are only really two long-term options for handling asylum seekers who arrive by boat:
1. Accept that they will continue to arrive by boat and treat them pretty much like those who arrive by air, ie let them live in the community until their claims are finalised. The difference would be that they should probably be detained initially for health, ID and some level of security checking.
The current approach of detaining everyone until their claims are finalised is expensive, bad for the mental health of detainees and does not have any of the deterrent effect it is supposed to have.
Nauru and TPVs are no alternative, despite Scott Morrison’s constant destructive and ill-informed rabbiting on about them.
The Nauru solution may be ruled out by the High Court decision (so for those saying the Labor is incompetent in proposing the Malaysia solution should give pause for thought that this ruling may have made against the Nauru solution in the Howard era if a challenge had been mounted along these lines). Nauru was never a deterrent to boat arrivals and it had the same role in the scheme of things that Christmas Island does now. Whether it is a signatory to the UN Convention is irrelevant as the Government of Nauru had no role, and would not have a role under a Coalition Government in processing asylum seekers. It was/would be purely an Australian Government operation, possible with the fig-leaf of IOM (International Office of Migration) administration. Nauru was never a deterrent to boat arrivals and the vast majority ended up in Australia anyway.
TPVs are not a deterrent and they are inhumane. Because they only grant a 3-year stay with no certainty of being extended, they do not allow holders of the visa to get on with their lives. The Howard Government TPV also denied holders access to English classes but expected them to go and get a job and ‘pull their weight’. They were punitive, bad for mental health but in the end no deterrent.
TPVs also do not allow family reunion and in that regard they actually lead to greater numbers coming by boat. It is common practice for one male member of a family, a person who is considered able to travel relatively safely on their own (this includes those coming as minors) to come to Australia, obtain refugee status and then sponsor their family who follow them out by air with humanitarian visas issued offshore.
When families are denied the option of safe family reunion, then they hop on boats as well. With the previous ‘Nauru solution’, there was the farcical and disgraceful situation that the families of men already living in Australia on refugee visas had to apply for refugee visas in their own right because the Government was not prepared to acknowledge that they were coming to join a family member who already had the right to live in Australia.
Coming to Australia by boat will continue people smuggler activity. But if it is accepted that people will continue to come that way, then the Government needs to consider whether it is a good idea to continue to prosecute the hapless Indonesian fishermen who earn some much-needed income providing the ferry service.
2. The other solution is to attempt to process refugee applications before asylum seekers get on boats. The logical place to do this is Malaysia. Malaysia is the point of entry in Southeast Asia for travel to Australia. Those seeking to coming to Australia can get into Malaysia quite easily. Anecdotally (because I don’t know for sure the extent of this) many asylum seekers spend quite a long time in Malaysia and I am aware that at least some of them work, possibly illegally.
I assume that the Government’s decision to return those who arrived by boat to Malaysia was an attempt to stop future boats arriving by sending the boat arrivals back whence they came and then increasing the number of refugees it takes from Malaysia.
It has been pointed out elsewhere that there are refugees in Malaysia who have been waiting many years for a country to offer them resettlement and that is the nub of the issue really, the sheer numbers, the millions, of refugees and asylum seekers waiting in other countries hoping that a wealthy country will offer them a place to live.
I assume that the rationale of the Malaysia policy was that the Australian Government would work with the UNHCR in Malaysia to identify those in most in need of resettlement rather than those who, to use a Howard Government term that I don’t like, ‘self-selected’ and got on a boat.
Possibly there is a place for a combination of both solutions, as John Menadue has argued elsewhere: deal with those who arrive by boat in a humane rather than punitive fashion, but work with countries in the region to work out ways of trying to stem the numbers, through more offshore processing.
The federak government can just legislate to allow it. There is a seperation of powers and the politicians are in the drivers seat! Until we the voting public wake up to who holds the whip hand! Edward James
Edward – as I responded to your similar post under the editorial, there isn’t a hope in hell of such legislation getting through the Senate.
Of course the government could wait for three knockbacks then call a double dissolution 😉