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Immigration and Human Rights Law Review
The Blog
Human Rights Immigration Law

Australia’s Circumvention of International Requirements for Asylum Seekers

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In response to the great influx of refugees seeking asylum in Australia starting in 2009, the Australian government implemented policies to detain asylum seekers in offshore processing centers while their asylum claims were adjudicated. In 2012, Australia returned to previous practices of detaining asylum seekers on Manus Island of Papua New Guinea and in Nauru. The processing centers were ill-equipped to handle the large number of men detained there and quickly became prisons, restricting the personal liberty of the asylum seekers. As more and more asylum seekers were forced to wait in these centers, living and health conditions worsened. Some men have waited over six years for their cases to be processed, while others have taken their own lives to escape the suffering in the prisons. The conditions of the detention of the asylum seekers by Australian law and policy in the Manus and Nauru processing centers did not meet the standards of international conventions on human rights, to which Australia is supposed to adhere.

Article 14 of the Universal Declaration of Human Rights, 1948, enshrines the right of all persons to seek and enjoy asylum from persecution in other countries.[1] The United Nations Convention Relating to the Status of Refugees, grounded in Article 14 of the Universal Declaration of Human Rights, is the foundation of international protection of refugees and asylum seekers today.[2] The Convention was adopted in 1951 and amended once by the 1967 Protocol, which removed the geographical and temporal limits of the Convention.[3] Article 31 of the Convention requires that contracting states not “impose penalties, on account of their illegal presence, on refugees who… enter or are present in their territory without authorization.”[4] The same Article requires that contracting states not restrict the movements of refugees in ways that are not “necessary.”[5] Thus, the Convention demands that refugees and asylum seekers not be penalized for their unlawful entry or stay, recognizing that asylum seekers may need to violate immigration laws when they flee persecution.[6] Penalties such as charging asylum seekers with immigration or criminal offenses or arbitrarily detaining them solely on the basis of seeking asylum are prohibited by the Convention.[7]

As a signatory to the 1951 Refugee Convention and the 1967 Protocol, Australia has voluntarily committed to comply with the provisions in the treaties. According to the Refugee Council of Australia, “it is not a crime to enter Australia without authorization for the purpose of seeking asylum. Asylum seekers do not break any Australian laws simply by arriving on boats or without authorization.”[8] Under Australian law, there is no offense that criminalizes arrival in Australia or seeking asylum in Australia without a valid visa.[9] Rather, unauthorized arrivals “are subject to Australia’s mandatory immigration detention policy introduced…in 1992.”[10] This policy requires that “‘unlawful non-citizens’ be detained unless they have been granted temporary legal status.”[11] Under Operation Sovereign Borders, authorized in 2013, Australian government policy has required that boats arriving in Australia without lawful authorization be prevented from landing and turned around.[12] Operation Sovereign Borders placed the Australian “military in control of asylum operations.”[13] Asylum seekers who succeeded in reaching Australia by boat are barred from resettling in Australia—meaning they cannot and will not be resettled in Australia— and placed in offshore processing centers, while their claims for asylum are processed and until they can be resettled in a third country.

Until October 2017, Australia had two offshore processing centers; one on Manus Island of Papua New Guinea, and on Nauru. Although asylum seekers who are placed in these centers can never settle in Australia, they may be able to settle in Papua New Guinea or Nauru. According to BBC News, human rights organizations say that “conditions in the [Papua New Guinea] and Nauru camps are totally inadequate, [due to] poor hygiene, cramped conditions, unrelenting heat and a lack of facilities.”[14] Furthermore, “holding asylum seekers in indefinite detention has caused widespread psychological harm, and exposed them to dangers including physical and sexual assaults.”[15] In August of 2013, the Australian government provided $310 million in aid to Papua New Guinea in order to house the processing center and resettle asylum seekers.[16] In February 2014, an Iranian asylum seeker, Reza Barati, 23, was murdered while inside the detention center on Manus island.[17] Barati was struck with blunt objects when “riots broke out and locals entered the facility.”[18] Seventy other asylum seekers were injured in the riot.[19] In September of the same year, another Iranian asylum seeker, Hamid Khazaei, 24, died from an untreated infection.[20] In January 2015, many of the detained men barricaded themselves inside the center and went on a hunger strike.[21] In this instance, over a hundred men refused food and over 15 men “sewed their lips together.”[22] The men were protesting “conditions in detention, the length of time their refugee assessments were taking… and plans to forcibly resettle them in” Papua New Guinea.[23] In December 2016, a Sudanese asylum seeker, Faysal Ishal Ahmed, 27, died after suffering a seizure and fall, where he may have been ill for months.[24] In April 2017, nine detainees were injured when Papua New Guinean defense personnel fired shots into the center.[25] In August 2017, an Iranian asylum seeker, Hamed Shamshiripour, was found dead after committing suicide.[26] In October 2017, a Sri Lankan asylum seeker was also found dead after committing suicide. By the end of the same month, the center on Manus island was officially closed after the Supreme Court of Papua New Guinea ruled against its constitutionality in April 2016.[27] On October 31, 2017, water, electricity, and food supply were cut off to the center as about 600 men refused to leave, citing fears for their safety in the local community and in the alternative facilities nearby.[28] The men cited previous attacks by residents in the city in their relocation refusals.[29] The asylum seekers who remained in the center “barricaded themselves inside, using solar power for their phones and digging wells for water as police cars circled.”[30] Behrouz Boochani, a distinguished Kurdish journalist from Iran, who has been detained on Manus island for almost six years, “said the men were experiencing dehydration, hunger, anxiety and the fear of attack and disease.”[31] Boochani blamed the Australian government for creating a situation in which it was “forcing people into starvation and these harsh conditions by refusing to offer a safe place for resettlement.”[32] Nat Jit Lam, the regional representative of the United Nations refugee agency, said that “the temporary housing” to which the men were to be relocated “was incomplete and unsafe.”[33] The same agency said that “Australia remains responsible for the well-being of all those moved to Papua New Guinea until adequate, long-term solutions outside the country are found.”[34] All 600 remaining men were relocated to the transition centers on Manus island on November 23, 2017.[35] The Australian government stopped reporting the number of men in detention at that time, and now an estimated 500 men are held on Manus island.[36]

In April of 2016, Papua New Guinea’s Supreme Court ruled that the detention of asylum seekers on Manus Island was illegal as it “breached the right to personal liberty” in the Papua New Guinean constitution.”[37] Justice Terence Higgins said in the decision that the detention of the asylum seekers breached the fundamental human rights guaranteed by international law and under the Papua New Guinean constitution, further arguing that treating the asylum seekers as prisoners was an offense to their rights and freedoms.[38] Although this decision was a step in the right direction to protect the rights of asylum seekers, the center was not officially closed until several months after the decision came down and there were still men there for another year. Regardless, asylum seekers whose freedom remains controlled by the Australian government are continuing to suffer in other offshore processing centers and temporary transit centers. The men are not afforded the protections they deserve and are still stripped of their rights to personal liberty and freedom of movement and healthcare. The Papua New Guinea Supreme Court decision was a step in the right direction and may also include language that could continue to help lessen the suffering of asylum seekers.

  1. Universal Declaration for Human Rights, Article 14, Section (b), 1948. ↑
  2. UNHCR, “Introductory Note,” Convention and Protocol, 2, available at https://cms.emergency.unhcr.org/documents/11982/55726/Convention+relating+to+the+Status+of+Refugees+%28signed+28+July+1951%2C+entered+into+force+22+April+1954%29+189+UNTS+150+and+Protocol+relating+to+the+Status+of+Refugees+%28signed+31+January+1967%2C+entered+into+force+4+October+1967%29+606+UNTS+267/0bf3248a-cfa8-4a60-864d-65cdfece1d47 (2010). ↑
  3. Id. ↑
  4. Convention Relating to the Status of Refugees, Article 31, Section (1), 1951. ↑
  5. Id, Section (2). For more about what might be “necessary,” see Guy S. Goodwin-Gill, “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection,” UNHCR, available at https://www.unhcr.org/3bcfdf164.pdf (Oct. 2001). ↑
  6. UNHCR, “Introductory Note,” Convention and Protocol, 3. ↑
  7. page 3 of convention and protocol UNHCR document, introductory note ↑
  8. Janet Phillips, “Asylum Seekers and Refugees: What are the Facts?” Parliament of Australia, 5, available at https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/asylumfacts (2015). ↑
  9. Id. ↑
  10. Id. ↑
  11. Id. ↑
  12. Scott Morrison, “Operation Sovereign Borders,” Transcript of joint press conference, 23 September 2013, available at https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22media/pressrel/3099126%22. ↑
  13. BBC News, “Australia asylum: Why is it controversial?” available at https://www.bbc.com/news/world-asia-28189608 (2017) ↑
  14. Id. ↑
  15. Id. ↑
  16. BBC News, “Manus: Timeline of controversial Australian detention centre,” available at https://www.bbc.com/news/world-australia-41813219 (2017) ↑
  17. Id. ↑
  18. Id. ↑
  19. Id. ↑
  20. Id. ↑
  21. Id. ↑
  22. Ben Doherty, “Manus Island asylum seekers declare end to two-week long hunger strike,” The Guardian, available at https://www.theguardian.com/australia-news/2015/jan/27/manus-island-asylum-seekers-end-hunger-strike (Jan. 2015). ↑
  23. Id. ↑
  24. Id. ↑
  25. Id. ↑
  26. Id. ↑
  27. Beldon Norman Namah MP v. Hon. Rimbink Pato, Minister for Foreign Affairs & Immigration, National Executive Council, and Independent State of Papua New Guinea (2016) SC 1497 (Papua New Guinea)↑
  28. Id. ↑
  29. Russell Goldman and Damien Cave, “What is Happening on Manus Island? The Detainee Crisis Explained,” New York Times, available at https://www.nytimes.com/2017/11/02/world/australia/manus-island-refugees.html (2017). ↑
  30. Id. ↑
  31. Id. ↑
  32. Id. ↑
  33. Id. ↑
  34. Id. ↑
  35. Asylum Insight: Facts and Analysis, “Asylum Seekers in Detention,” available at https://www.asyluminsight.com/statistics/#.XGNyFi2ZPfZ. ↑
  36. Id. ↑
  37. Eric Tlozek and Stephanie Anderson, “PNG’s Supreme Court Rules detention on Manus Island is illegal,” in The Guardian, available at https://www.theguardian.com/australia-news/2016/apr/26/papua-new-guinea-court-rules-detention-asylum-seekers-manus-unconstitutional (April 2016) ↑
  38. Id. ↑

 

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